Greater Southeast Alaska Conservation Community Greenpeace ...a123.g.akamai.net/7/123/11558/abc123/forestservic... · Greenpeace is a non-profit environmental organization and its

· Greater Southeast Alaska Conservation Community · Greenpeace ·· Cascadia Wildlands · Center for Biological Diversity · Alaska Wildlife Alliance ·

Earl Stewart, Reviewing Officer January 15, 2016USFS, Tongass National ForestFederal Building648 Mission StreetKetchikan, AK [email protected]

Subj: Objection Letter Re: Kosciusko Vegetation Management and Watershed ImprovementProject Final Environmental Assessment (EA); Draft Decision Notice (DN) and Finding of NoSignificant Impact (FONSI)

Dear Reviewing Officer Stewart:

This letter is a formal objection to the Kosciusko Vegetation Management and WatershedImprovement Project (Kosciusko VMWIP) Draft DN, FONSI and EA pursuant to 36 C.F.R. §218. [36 C.F.R. § 218.8(d)(4)]. The Responsible Official is District Ranger RachelleHuddleston-Lorton who will implement the project in the Tongass National Forest’s ThorneBay Ranger District. [Id.]. The objection letter is submitted on behalf of Greenpeace, theGreater Southeast Alaska Conservation Community (GSACC), Cascadia Wildlands(Cascadia), the Center for Biological Diversity (The Center) and the Alaska Wildlife Alliance(AWA). GSACC, Greenpeace, Cascadia, the Center and AWA submitted timely comments onthe draft EA on September 8, 2015, [PR 762_0151], and are eligible to file an objection under36 C.F.R. § 218.5. Larry Edwards of Greenpeace is the lead objector pursuant to 36 C.F.R. §218.8(d)(3).

The Responsible Official selected Alternative 3 as the proposed action. The SelectedAlternative will remove nearly 30 million board feet (MMBF) of timber from recovering second-growth forests and slightly more than 1 MMBF of old-growth forest from 3,390 acres ofNational Forest Land. [DN/FONSI at 1]. The second-growth removals will occur through amix of clearcuts (even-aged management - 396 acres); patch clearcuts (two-agedmanagement – 856 acres) and partial clearcuts (uneven-aged management (209 acres). [Seeid. at 3; PR 762_0173 at 31]. Additionally, the Forest Service plans build 6.4 miles of newtemporary road, recondition 4.7 miles of road, and do up to 18 miles of road maintenance.[DN/FONSI at 1]. The Forest Service published the legal notice for this project on December1, 2015, [PR 762_0168], initiating the 45 day objection period, and objectors submit thistimely objection letter on January 15, 2016.

Commenting OrganizationsThe undersigned organizations have members who use the Tongass National Forest,

including the project area, for recreation, commercial fisheries, subsistence, wildlife viewingand other activities.

GSACC is a regional conservation non-profit organization in Southeast Alaska that wasformed in 2011. GSACC seeks to foster protection of southeast Alaska’s fish, wildlife andtheir habitats and our Founding Principles adhere to the rigorous application of bestavailable science. Our membership uses public lands throughout the region including MitkofIsland and is composed of commercial fishermen, sport and subsistence users, and small

16-10-05-0001-O218-Kosciusko-GSACC,et.al

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businesses that have a direct interest in the sustainable development and biological integrityof Southeast Alaska’s regional natural resources. We support habitat protection as an over-riding concern. Our website is http://gsacc.net/.

Greenpeace is a non-profit environmental organization and its mission is to raise publicawareness of environmental problems and promote changes that are essential to a green andpeaceful future. The organization’s involvement in forest issues concerning the NationalForest System generally and particularly the Tongass National Forest and other forests ofsoutheast Alaska dates back to the early 1990s. Our concerns have included the effects oflogging and associated road construction on ecosystems, roadless areas, fish, wildlife andhunting, as well as protection of the last remnants of old-growth forest in the United States.Our website is http://www.greenpeace.org/usa/en/

The Center is a non-profit environmental advocacy organization with more than 300,000members and online activists dedicated to conservation and recovery of species-at-risk ofextinction and their habitats. Center members, activists and staff maintain long-standinginterests in clean water and biological diversity on the Tongass National Forest. The Center’swebsite is: http://www.biologicaldiversity.org .

Cascadia Wildlands members and staff use and enjoy the Tongass National Forest,Mitkof Island and the proposed project area for personal recreation, education, commercialfishing and tourism, photography and other uses. Cascadia acts in the interest ofconservation of these opportunities for ourselves, for future generations, and for the intrinsicworth we find in a healthy, functioning wildland. Our website is http://www.cascwild.org/.

Founded in 1978, the Alaska Wildlife Alliance is a non-profit organization committed tothe conservation and protection of Alaska’s wildlife. We promote the integrity, beauty, andstability of Alaska’s ecosystems, support true subsistence hunting, and recognize theintrinsic value of wildlife. The AWA works to achieve and maintain balanced ecosystems inAlaska managed with the use of sound science to preserve wildlife for present and futuregenerations. AWA was founded by Alaskans and depends on the grassroots support andactivism of its members. Our website is http://akwildlife.org/


http://gsacc.net/

http://www.greenpeace.org/usa/en/

http://www.biologicaldiversity.org/

http://www.cascwild.org/

http://akwildlife.org/

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ContentsI. Introduction .................................................................................................................4

II. The FONSI is Arbitrary, and Adverse Environmental Impacts Must be Analyzed in an EIS .................5

A. Objection Point 1: The Responsible Official’s determination regarding unique or unknown risks wasunreasonable ..........................................................................................................6

1. Highly uncertain effects and unknown risks of short-rotation clearcuts for forest structure andwildlife habitat in recovering, second growth forests .......................................................7

2. The DN/FONSI & EA failed to consider unique & unknown risks to at-risk wildlife populations 11

a.The EA failed to adequately consider unknown risks to Queen Charlotte goshawks ............. 13

b.The EA failed to adequately evaluate uncertainties and unknown risks to wolves ................ 14

( i ). The EA failed to adequately evaluate uncertainties and cumulative risk to sustaining thewolf population ............................................................................................... 16

c. The EA failed to adequately evaluate uncertainties and cumulative risk to sustaining the deerpopulation ..................................................................................................... 21

( i ). The EA has greatly exaggerated the deer carrying capacity of Kosciusko Island.............. 21

3. The DN/FONSI failed to consider unknowns with regard to the Transition, and economics ofsecond-growth management................................................................................... 23

4. Conclusion and Suggested Resolution ...................................................................... 24

B. Objection Point 2: The Responsible Official arbitrarily determined that the Kosciusko VMWIPwould not establish a precedent for future actions ............................................................ 24

1. Conclusion & suggested resolution .......................................................................... 27

C. Objection Point 3: The Responsible Official arbitrarily determined that the project will not havesignificant cumulative effects .................................................................................... 27

1. The cumulative impacts of this project and non-federal clearcuts are significant, warrantinganalysis in an EIS ............................................................................................... 29

2. The Responsible Official arbitrarily limited the context of the project ................................ 30

3. Flaws with the cumulative impacts assessments for specific resources ................................ 31

a.The EA never considered timber demand in light of changing landownership .................... 31

b.The cumulative impacts determination for Queen Charlotte Goshawks fails to adequatelymeasure POG across the landscape........................................................................ 31

c. The cumulative impacts analysis for wolves and deer was inadequate ............................. 32

4. Conclusion and Suggested Resolution ...................................................................... 32

D. Objection Point 4: Pertaining to a Broad Failure to Produce an EIS ....................................... 32

1. Conclusion and suggested resolution ........................................................................ 34

III. The Decision Would Violate the National Forest Management Act (NFMA) ............................... 34

A. Objection Point 5: The EA is outside the scope of the 2008 TLMP ....................................... 34

1. TLMP needs to assess utilization and value of second-growth, prior to harvesting ................. 35

2. Justification for clearcutting young growth ................................................................ 35


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3. There are no Forest Plan requirements for forest structure retention in second-growth forests, evenin heavily clearcut landscapes ................................................................................ 36


B. Objection Point 6: Provision of a deer carrying capacity of only 5 deer/mi2 would violate TLMP andNFMA ................................................................................................................ 36


C. Objection Point 7: The TLMP Conservation Strategy no longer protects wolves ....................... 37

1. The conservation strategy was not revisited when the deer model was changed .................... 38

2. The provision of large & very large reserves was arbitrary, and this was never revisited .......... 39

3. Conclusion ....................................................................................................... 40


IV. Additional conclusion and suggested resolution ................................................................... 41

V. Signatures ................................................................................................................. 41

(verifiable signatures upon request) .............................................................................. 41

List of Exhibits.................................................................... Error! Bookmark not defined.

I. IntroductionOur major concerns about this project pertain to adverse impacts to wildlife and fish and

further loss of socio-economic benefits resulting from the decision to clearcut some of theremaining old-growth habitat in the project area and to implement short-rotation clearcutharvests for recovering second-growth forests. The second-growth clearcut prescriptions willprevent those recovering forests from achieving old-growth characteristics, and, incombination with extensive non-federal logging, will reduce long-term habitat values forwildlife by prolonging the stem exclusion phase of forest succession. Winter deer habitat andproject area watersheds have already been seriously impacted due to decades of industrialscale logging and existing old-growth and recovering forests are at risk due to the proportionof private and state timberland ownership on Kosciusko Island. Any additional impacts toremaining habitat, even lesser quality habitat, will worsen an already bad situation for deer,wolves and subsistence hunters, harm old-growth dependent species such as goshawks, andpose unjustifiable risks to project area watersheds and fishery values. Our objection can besummarized in the following broad categories:

· The FONSI is arbitrary because it relied on a flawed EA and failed to addresssubstantial questions about significant adverse environmental impacts associatedwith the second-growth logging plan for the project area;

· The EA violated NEPA, NFMA and ANILCA by failing to take a hard look at impactsto wolves, deer and subsistence use and ensure wildlife viability;

· The EA violated NEPA and NFMA by failing to take a hard look at impacts toaquatic habitat and fish populations.

· The decision will violate NEPA unless an EIS is prepared.· This project establishes a precedent for short-rotation management of federally-

owned recovering forestlands in order to support timber exporters withoutadequate analysis and prior to the finalization of the TLMP Amendment process.


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Much of the proposed project area and surrounding lands are already heavily fragmentedand contain large portions of what is currently, or soon to be, unsuitable deer habitat due tocanopy closure in the extensive clearcuts and second-growth stands. The draft decision forthe Kosciusko VMWIP has the potential for dramatic, further impact to a area already undersevere subsistence use stress, due to decades of development activities. No more than aminimal amount of logging – if even that – is justifiable given the already existing cumulativeimpacts.

That said, we do appreciate that the project’s purpose includes a proposal to improvewater quality and fish habitat, particularly through improvements to fish passage at roadcrossings, and correction of road problems that contribute to water quality degradation. [SeeEA at 5].

As explained in the following objection points, we request that you eliminate orsubstantially reduce planned logging as authorized in the draft DN, as those projectcomponents must be analyzed in an EIS. We would support a modification to the decisionthat allows for culvert repairs, road maintenance and light touch silvicultural treatmentsaimed exclusively at improving wildlife habitat conditions to occur independently under theEA and draft decision.

II. The FONSI is Arbitrary, and Adverse Environmental Impacts Must be Analyzed in anEIS

Our draft EA and scoping comments requested that the Responsible Official prepare afull EIS. [PR 762_0083 at 2; PR 762_0151 at 2]. We explained that an EIS was necessary toanalyze the extent of past cumulative forest removals and future non-federal logging onKosciusko Island and added that this project’s stated role as a pilot project also warrantedthe development of an EIS. [PR 762_0083 at 2; PR 762_0151 at 3]. This need is underscoredby recent caselaw ¾ Or. Wild v. BLM, No. 6:14-CV-0110-AA, 2015 U.S. Dist. LEXIS 32584, *26–27 (D.Or. Mar. 14, 2015) (although a pilot ecological restoration timber project would not bind future agency actions, itwould shape future forestry methods and strategies, thereby triggering factor (b)(6)). The proposed action isa large timber project that would remove 29.9 MMBF of timber from recovering forests and 1MMBF of old-growth timber from 3,390 acres of National Forest land through clearcutting,patch clearcutting (two-aged management) and clearcutting through multiple entries(uneven-aged management). [Draft DN/FONSI at 1]. The Responsible Official prepared aFONSI after determining that there was no possibility that the project could have asignificant effect on the quality of the human environment. [Id. at 5]. The FONSI is arbitrarybecause it reflects an unreasonable analysis of NEPA’s context and intensity factors, [Id. at 5-9] and relies on a flawed EA that failed to take a hard look at impacts to project arearesources. [Id.]

NEPA requires federal agencies to analyze the foreseeable environmental impacts,including direct, indirect, and cumulative impacts, of “major Federal actions.” 42 U.S.C. §4332(2)(C). If the action may have a significant effect, the agency must prepare an EIS.Foundation for N. Am. Wild Sheep v. United States Dep’t of Agric., 681 F.2d 1172, 1178-79 (9th

Cir. 1982)(emphasis added)(an EIS was required where key questions were “ignored, or, atbest, shunted aside with mere conclusory statements”); see also Blue Mountains BiodiversityProject v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998)(the “substantial question standarddoes not require a showing ‘that significant effects will in fact occur”). In other words, thethreshold issue for determining whether or not to prepare an EIS is not whether significanteffects will in fact occur but instead whether there are substantial questions about whether aproject will have a significant effect on the environment. [Idaho Sporting Congress v. Thomas,137 F.3d 1146, 1150 (9th Cir. 1998).


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The determination of a significant effect on the environment requires consideration of“context and intensity.” [40 C.F.R. § 1508.27]. Intensity is the degree to which the agencyaction affects the locale and interests identified in the context part of the inquiry. NationalParks & Conservation Ass’n v. Babbitt, 241 F.3d 222, 731 (9th Cir. 2001); see also IdahoSporting Congress, 137 F.3d at 1150]. A project’s intensity requires evaluation of variousfactors, including specific adverse impacts on numerous project area management indicatorspecies, “[t]he degree to which the possible effects on the human environment are highlyuncertain or involve unique or unknown risks[,] … “[t]he degree to which the action mayestablish a precedent for future actions with significant effects[,]” … and “[w]hether the actionis related to other actions with individually insignificant but cumulatively significantimpacts.” [40 C.F.R. § 1508.27(b)(5), (6), (7)]. Any “one of these factors may be sufficient torequire preparation of an EIS in appropriate circumstances.” [See Ocean Advocates v. U.S.Army Corps of Engineers, 402 F.3d 846, 865 (9th Cir. 2005)]. An agency “cannot avoidpreparing an EIS by making conclusory assertions that an activity will have only aninsignificant impact on the environment;” rather, it must provide a “convincing statement ofreasons.” [Id. at 864; Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d at 1212].For purposes of determining whether to prepare an EIS, “[s]ignificance cannot be avoided byterming an action temporary or by breaking it down into small component parts.” 40 C.F.R. §1508.27(b)(7).

Finally, Logging on short rotations is controversial when weighed against theConservation Strategy’s recommendation of 300-year rotations. Moreover, extrapolating thebenefits of small-scale thinning projects to large-scale second growth clearcuts has noscientific basis. Finally, the notion that the project was “progressively planned” to meetfuture needs “during the transition away from old-growth management (DN, p. 2) iscontroversial where the “transition strategy” has neither been finalized nor evaluated viaNEPA. A project is considered “controversial” for purposes of 40 C.F.R. § 1508.27(b)(4) ifsubstantial questions are raised as to whether the project may cause significant degradationof some human environmental factor, thereby requiring preparation of an EIS. See Andersonv. Evans, 371 F.3d 475, 489 (9th Cir. 2004). The draft DN (p. 7) states: “The management ofNational Forests can be controversial in nature; however, the management of publically-owned forest is seldom controversial from a scientific perspective.” This project iscontroversial because it is the first large-scale second growth project on the Tongass.

A. Objection Point 1: The Responsible Official’s determination regarding unique orunknown risks was unreasonable

This objection point includes the facts and conclusions in the above paragraphs and in section I. Ourprevious comments expressed concerns about the cumulative impacts of this project inconjunction with extensive logging on non-federal lands on Kosciusko Island. [PR 762-0151at 3]. WAA 1525 has only about 53% of historical POG remaining on all lands. [PR762_0175 at 25]. All of the commercial removals rely on clearcutting at some scale, withdifference only in the size and frequency of opening and future entries. [PR 762_0173 at 33(declining to utilize less damaging prescriptions such as commercial thinning or single treeselection due to risks of weather damage and concerns for future wood quality and timbervalue)]. Thus, one of our most important concerns pertained to the decision to clearcutsecond growth stands that are nearing the understory re-initiation structure stage and wouldotherwise, in time, develop old-growth characteristics. [PR 762_0151 at 2].

The NEPA analysis must consider “[t]he degree to which the possible effects on thehuman environment are highly uncertain or involve unique and unknown risks.” [40 C.F.R.§1508.27(b)(5)]. The Responsible Official stated that the Kosciusko Project EA disclosed allthe direct, indirect and cumulative effects of the project, and asserted that those effects,along with those documented in the Biological Assessments/Evaluations did not indicate any


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highly uncertain effects on the human environment or involve unique or unknown risks.[DN/FONSI at 7]. The project record also reflects the assumption that clearcutting “at thescale proposed in this project will result in improvements to wildlife habitat over the existingcondition.” [PR 762_1073 at 34]. This conclusion is arbitrary; the EA acknowledges that“the Tongass NF has never executed a large-scale young-growth management project like theKosciusko Project.” [EA at 15]. The EA never addresses the adverse impacts to foreststructure and wildlife habitat caused by managing the project area through clearcuts andthus preventing second-growth forests from recovering to a point where they could againprovide old-growth habitat conditions for wildlife. This failure renders the FONSI arbitrarybecause the EA failed to take a hard look at adverse environmental impacts. [See NativeEcosystems Council v. U.S. Forest Service, 428 F.3d 1233, 1241 (9th Cir. 2005)(explaining that“[a] hard look does not dictate a soft touch or brush-off of negative effects”)].

The EA has not given a hard look at claimed beneficial aspects of the project. Theseinclude: (1) “mitigating potential long-term effects as a result of land conveyance” [E at 2]; (2)that “the proposed treatment of young-growth stands is expected to be beneficial to wildlife,especially deer” [EA at 41]; (3) that “Treating corridors would benefit wildlife across the islandand result in the entire southern portion of the island being better connected” [EA at 46]; and(4) that “these treatments would provide a beneficial result to wildlife” [EA at 48]. The NEPAregulation plainly states: “A significant effect may exist even if the Federal agency believesthat on balance the effect will be beneficial.” 40 C.F.R. § 1508.27(b)(1). Here, the impact oflogging 31 MMBF is significant, the alleged benefits of “treatment” notwithstanding. See,e.g., Envtl. Prot. Info. Ctr. v. Blackwell, 389 F. Supp. 2d 1174, 1197 (N.D. Cal. 2004).

1. Highly uncertain effects and unknown risks of short-rotation clearcuts for foreststructure and wildlife habitat in recovering, second growth forests

Our comments on the draft EA expressed concerns about the risks associated withintensive logging of recovering forests prior to the re-initiation of old-growth forestcharacteristics. [PR 762_1151 at 2]. The 9th Circuit has held that the Forest Service haserred in assessing significance by failing to consider uncertain risks associated with thinningprojects given remaining uncertainty about impacts to wildlife and forest structure andsignificant uncertainties regarding the effectiveness of the treatments. [Sierra Club v.Bosworth, 510 F.3d 1016, 1031-32 (9th Cir. 2007)]. Similarly, in Ecology Center v. Austin, theForest Service proposed commercial thinning and salvage logging projects in response to firedamage in portions of national forest land in Montana. [Ecology Center v. Austin, 430 F.3d1057, 1061 (9th Cir. 2005)]. The Forest Service had concluded that the treatments would bebeneficial to dependent species. [Id. at 1064]. However, the court noted that the agency “hadnot yet taken the time to test its theory with any ‘on the ground analysis.’” [Id.]. The courtexplained that:

Just as it would be arbitrary and capricious for a pharmaceutical company to market adrug to the general population without first conducting a clinical trial to verify that thedrug is safe and effective, it is arbitrary and capricious for the Forest Service toirreversibly “treat” more and more old-growth forest without first determining that suchtreatment is safe and effective for dependent species. This is not a case in which theForest Service is asking for the opportunity to verify its theory of the benefits of old-growth treatment. Rather, the Service is asking us to grant it the license to continuetreating old-growth forests while excusing it from ever having to verify that suchtreatment is not harmful. [430 F.3d at 1064].1

1 Ecology Center addressed this flaw in the context of the Forest Service’s obligations under NFMA;however the rationale – that the Forest Service’s project would continue treatments without first takingthe time to observe the effects – bears directly on the sufficiency of the FONSI’s consideration ofuncertainties and unknown risks under 40 C.F.R. § 1508.27(b)(5).


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Objectors submit that the Kosciusko VMWIP DN/FONSI similarly erred in failing toconsider the significant uncertainties and unknown risks associated with projectprescriptions for second-growth clearcuts, patch clearcuts and uneven-aged management.Importantly, the Kosciusko VMWIP is not a thinning project – the commercial timberremovals all involve clearcutting at different spatial and temporal scales. [PR 762_0173 at34]. The DN/FONSI suggests that the action alternatives, particularly Alternative 4, aim atmitigating the impacts of timber harvests on non-federal lands with the Selected Alternative“also being particularly responsive to this objective.” [DN/FONSI at 3]. The ResponsibleOfficial thus assumed that the project would have beneficial effects based on the assumptionthat some project design measures would mitigate the impacts of intensive clearcutting byadjacent landowners. [Id. at 6; EA at 2]. The EA failed to consider the uncertainty about theForest Service’s ability to offset adverse environmental impacts through the project’sproposed plan to log or otherwise treat project area recovering forests.

There are four stages of forest succession in previously clearcut southeast Alaska forests:(1) stand initiation (1 – 25 years): (2) stem exclusion (25 – 150 years); (3) understoryreinitiation (150 – 250 years); and old-growth forest (>250 years). [EA at 64; see also PR762_0389 at 5-8 (Alaback 1984)]. The EA discloses that project area commercial second-growth stands would recover fully into the understory re-initiation stage over the next 40 to50 years. [Id. at 25]. However, the project delays this recovery process so that clearcutsecond-growth forests would require 50 to 60 years to reach the same stand conditionspresent today, and another 40 to 50 years to recover into understory re-initiation structure.[Id.]. Patch clearcut prescriptions (two-aged management), also delay the recovery process byremoving half of the stand through a patchwork of 20 acre clearcuts, and then the projectproposes to clearcut the remaining half of the stand within 30 years. [Id.]. Even the un-even aged management prescription, which aimed primarily at mitigation, [Id. at 10], wouldprevent full recovery by removing the entire stand by staggering three entries over a sixtyyear period. [Id. at 26].

As the Silviculture Resource Report explains, the above plan for all commercial loggingwill result in “a range of rotation ages from 100 to 110 years old.” [PR 762_0173 at 32]. Thisrotation schedule is inconsistent with the need to provide long-term understory forageproduction and habitat quality for wildlife, which is achievable through a rotation period of300 years, or, better yet, retaining future old-growth forests as old-growth. [See PR762_0389 at 21 and Table 7]. In other words, all of the alternatives, over the long-term, willresult in federal lands remaining at the stem exclusion stage. Given this impact, the FONSI’sfailure to consider uncertainties about the impacts of additional clearcuts, and an indefiniteprolongation of the stem exclusion stage, was unreasonable. This is because the ResponsibleOfficial failed to consider the risk of creating a long-term habitat deficit, such as this:

In Southeast Alaska there are many specific ecological factors which explain whylogging can have such a negative impact on key wildlife species in this region. Mostlogging has occurred in low-elevation valley bottoms (<1000’) which provide criticalhabitat for wildlife, especially during times of heavy snow cover. Removal of old-growthforest and its replacement by second-growth forest affects winter habitat for deer in twospecific ways: loss of snow shedding capability of complex old-growth canopies (effectsmobility and foraging efficiency of deer) and loss of a productive understory plancommunity (provides forage quality and quantity). Although clearcut harvesting doesproduce an immediate flush of high quality understory biomass, it typically lasts only10-25 years, and is not available to deer during periods of heavy snow. The greatestimpact occurs three or more decades after logging, during the “stem exclusion” phase offorest stand development, when the densely stocked and rapidly growing young conifersshade out most of the important plant species for deer and other wildlife species. Thestem exclusion phase lasts for as much as 150-200 years so can create a long-lasting


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deficit of wildlife habitat for a given watershed or region, unless an effective restorationstrategy can be developed. [PR 762_0387 (Alaback 2010)(emphasis added)].

Thus, it is clear that a logging plan which would indefinitely maintain project areasuccessional forests in the stem exclusion phase triggers the need to prepare an EIS giventhat the applicable threshold is “substantial questions” about adverse environmental impactsand associated unknown risks and uncertainties. Scientists involved in the development ofthe TLMP conservation strategy recognized that short rotations as proposed here are“insufficient for development of forest stand attributes approximating the composition,structure, and function of old-growth forests.” [PR 762_0584 at 6 (Iverson 1996)]. Thus,even-aged short rotations had “the highest level of risk for old-growth associated wildlifespecies.” [Id. at 7].

Further, the proposed treatments are at best experimental and lack support from therelevant scientific materials in the project record – in other words, the potential impacts arehighly uncertain under §1508.27(b)(5). The Responsible Official asserted, incorrectly, that“[t]he Forest Service has considerable experience implementing the types of activities plannedin the Kosciusko Project EA, and has found the effects from similar actions in similar areasto be reasonably predictable and well-understood.” [DN/FONSI at 8 (referencing monitoringreports).]. This assertion is unreasonable; the very nature of this project is experimental andthere is no support for the clearcut prescriptions in the applicable scientific materials,meaning that the potential impacts of this project are highly uncertain and entail unknownrisks.

The project record and 2008 TLMP FEIS make clear that there are a limited number ofpeer-reviewed scientific studies regarding the efficacy of second-growth treatments. Thosestudies review thinning and gap treatments and provide no support for the proposition thatlarge-scale clearcutting of second-growth would not result in significant adverse impacts toproject area resource values. While the Forest Service has recently initiated research on theTongass National Forest regarding second-growth logging, it has not published the results,and there is a need for “much more” research. [PR 762_0261 at 1-2, 8 (Cole et al 2010)]. Theprimary silvicultural studies in the record reflect an historical focus on thinning treatmentsfor tree growth and wood product quality rather than wildlife benefits. [PR 762_0284(McClellan 2005); PR 762_0290 (Deal & Tappenier 2001); PR 762_0295 at 39 (Reutebuch etal 2002); PR 762_0387 at 3 (Alaback 2010)(explaining that thinning can be effective inimproving wildlife habitat for up to a decade, but a key limitation on its effectiveness “is itsrelatively short longevity”)]. Even in the Pacific Northwest, “[t]here is little research oroperational experience, … to validate successful outcomes of new silvicultural approachesbeing proposed and implemented for managing young-growth stands.” [PR 762_0295 at 39(Reutebuch et al 2002)]. Moreover, clearcutting does not mimic natural old-growth forestconditions where wind disturbance or small patches of tree mortality create canopy gaps, [PR762_0387 at3], rather, clearcutting is a “major disturbance.” [PR 762_0295 at 74 (Zaborskeet al 2002)].

Thus, although the 2008 TLMP FEIS identified “potential” benefits for wildlife that wouldresult from young-growth treatments, it acknowledged that there is “little scientificallydocumented experience with uneven-aged harvest in southeast Alaska.” [TLMP FEIS at 3-329]. The analysis explained that “there are many unanswered questions as to how toimplement thinning treatments that provide a sustainable source of high value woodproducts while maintaining biological diversity.” [Id. at 3-330]. The Forest Service identifiedconsiderable experience with pre-commercial thinning as the “only intermediate treatmentcommonly used on the Tongass.” [Id. at 3-329, 3-342]. There was “much less experiencewith other young-growth management techniques, such as pruning and commercialthinning” although the FEIS did anticipate an increase in the amount of commercial thinningover the planning cycle. [Id.]. Thus, silvicultural prescriptions for recovering second-growth


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forests other than pre-commercial thinning were described as “experiments.” [Id. at 3-330].Pacific Northwest forest managers have moved forward with new approaches that seek tomimic characteristics of older stands, but even then there is considerable uncertainty:

No young-growth stands, however, have been managed for an extended period underthese proposed alternative regimes. Thus, estimates of relative costs and benefits arebased on major extrapolations from limited data. In addition, no experimentation hasfocused on how various factors (i.e., understory and overstory species composition,vertical and horizontal spatial distribution of trees, snags, and coarse woody debris(CWD) within a stand, and age-size distribution of trees) independently affect plan andanimal populations, or how altering these factors will impact tree growth, standdifferentiation, habitat functions, or the production of forest products. [PR 762_0295 at39 (Reutebuch et al 2002)].

One of the most important and early reviews of forest succession in southeast Alaskanoted that “there are no data at this time to suggest that silvicultural thinnings or timberrotations less than 200 years will measurably increase either the diversity or productivity ofunderstory vegetation over that typically found in old-growth forests.” [PR 762_0389 at 3(Summary)(Alaback 1984)]. The record shows that research related to wildlife habitatimprovements associated with second growth treatments focuses on less destructiveprescriptions. For example, commercial thinning and single-tree selection can improveforage availability and summer habitat conditions relative to untreated stands in SoutheastAlaska second-growth forests. [PR 762_0295 (Zaborske et al 2002]. Project record materialsrelevant to managing second-growth for goshawks recommend Individual Tree Selection (ITS)and a fairly complicated approach that involves silviculture on a fine scale or stand thinningfrom below to reduce stem density and pruning to improve sub-canopy flyways. [PR762_0295 at 1, 9 (Shepperd et al 2002); PR 762_0415 at 12]. Other avian studiesrecommend variably spaced thinning and forest retention in the matrix. [PR 762_0417 at 1(DellaSala et al 1996)]. But implicit in their recommendation for conservation of old-growthfor old-growth dependent species is the need, in this project area, given the existing andprospective deficit of old-growth, for forest succession past the stem exclusion phase.

Importantly, however, more recent research shows that these improvements associatedwith many thinning prescriptions may not be statistically significant, and confirms previousstudies showing “only transient effects of thinning treatments on wildlife habitat.” [PR 0387at 6 (Alaback 2010)]. The most recent evaluation of measures to restore wildlife habitat inSoutheast Alaska’s recovering forests focused on the creation of small, artificial canopy gapsup to a half acre in size – not clearcuts. [PR 762_0387 at 2-3; [PR 762_0512 (Ott and Juday2002)]. The artificial canopy gaps would likely result in stands “more similar to the patchyforest conditions that characterize old-growth forests. [Id. at 4]. The record shows that thistype of prescription would be much more likely to achieve an appropriate balance betweenwildlife objectives and long-term timber management than an untested experiment thatwould maintain large areas in stem exclusion:

For typical gap treatments, where as little as 5-10% of the area of the stand is treated,we estimate there will still be a 20-50% increase in deer carrying capacity. In theory asmuch as a 4 fold increase in deer carrying capacity could be achieved in the winter, or adoubling of summer carrying capacity if canopy gaps were increased to 50% of thestand area. In addition to these significant gains in habitat quality, canopy gaps wouldbe expected to also be an important means to promote connectivity, dispersal habitatand to retain pockets of understory diversity that could aid reestablishment of diversitywhen stands are scheduled for other treatments such as commercial thinning.

…From an ecological standpoint there is much data and theory that supports the ideathat forest biodiversity is generally enhanced by increasing forest heterogeneity as wehave done with creation of canopy gaps [citations omitted]. It makes sense thatdisturbances which create irregular openings are generally going to create a variety of


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ecological conditions which will provide habitat for a wider range of species than whatwould occur with more homogenous forest conditions (or more homogenousdisturbances). There is considerable evidence that canopy gap formation is a majordriver of ecological diversity in temperate rainforests in general. It should not besurprising then, that by creating small canopy openings, similar in size to what occursin old-growth forests one can enhance habitat diversity following homogeneousdisturbances such as clearcut logging. [PR 762_0387 at 16].

It is thus clear that the Forest Service has never studied the anticipated effects of thesetreatments in terms of mitigating impacts to wildlife or forest structure – as explained inNational Parks Ass’n, this proposal is a plan “to act first and study later” despite uncertaintyas to “whether the measures are sufficiently related to the effects they are designed to cure.”[See, e.g. National Parks & Conservation Ass’n, 241 F.3d at 734 (identifying “a paucity ofanalytic data to support the Park Service’s conclusion that the mitigation measures would beadequate in light of the potential environmental harms”]. The EA explicitly aimed atmitigating the impacts of non-federal logging in the project area by stating that “[t]he harvestof these acres in other ownerships increases the importance of the proposed treatments onNFS lands.” [EA at 47].

Thus, the EA and FONSI ignore the risks and significant adverse environmental impactsassociated with clearcutting by relying on these second-growth clearcuts as a mitigationmeasure without any support for the efficacy of the treatments – a result that courts havedetermined to be unacceptable when a project poses, as here, a long-term risk caused bymaintaining project area second-growth acres in the stem exclusion phase. [See NationalAudubon Society v. Hoffman, 917 F.Supp. at 289 (finding a proposed mitigation measure“particularly troublesome” given the lack of support for its effectiveness and adverse projectimpacts on wildlife); Blue Mountains Biodiversity Project, 161 F.3d at 1214 (finding that it isnot enough under NEPA to state that there are no uncertainties or unknown risks; theagency must defend its conclusions with references in the EA and record)].

As a suggested resolution, objectors request that you direct the Responsible Official tomodify the decision by rescinding all commercial timber removals authorized in the DecisionNotice pending the development of an EIS that evaluates the impacts of clearcuttingrecovering forests. We believe that the necessary analysis is of significant importance andthat a decision on the KVMWIP project should be deferred until the completion ofprogrammatic analysis as part of the TLMP Amendment process.

2. The DN/FONSI & EA failed to consider unique & unknown risks to at-risk wildlifepopulations

Our comments on the draft EA and scoping comments raised substantial questions aboutsignificant adverse impacts to deer, wolves and goshawks. [PR 762_0151 at 3; PR 762_0083at 4]. The record makes clear that scientific research has documented how clearcut loggingcan “negatively [a]ffect many species of interest such as the Sitka black-tailed deer, wolvesand goshawks in southeast Alaska.” [PR 762_ 0387 at 2 (Alaback 2010]. The EA measuredimpacts to wildlife exclusively in terms of cumulative effects to historical and existing old-growth. [EA at 44]. It thus failed to consider the important factor of whether to allowrecovering forest a long enough period of time to allow for the development of old-growthforest characteristics. The failure to consider these impacts rendered the FONSI arbitrary byrelying on a flawed EA in violation of NEPA. [Native Ecosystems Council v. Tidwell, 599 F.3d926, 936-937 (9th Cir. 2010)].

In general, the EA identifies significant uncertainties that raise substantial questionsabout adverse impacts that trigger the need for an EIS. It states that “it is unknown whatthe specific effects of increased fragmentation of young growth may be to wildlife and birdspecies.” [Id. at 46; PR 762_0176 at 19 (little is known what the effects to wildlife would be if


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the proposed treatments increase the number of small patches of young growth”; “[l]ittle isknown about the effects of proposed young-growth treatments to wildlife”)]. It alsoacknowledges that “[t]here is uncertainty in the extent and intensity of future harvests on thesubstantial acreage of the project area that was conveyed to Sealaska Corporation … andwhat the landscape-scale impact to wildlife … may be.” [EA at 10]. These uncertaintiesalone triggered the need for an EIS.

Further, it is important to consider the appropriate standard for when substantialquestions about adverse impacts to wildlife can trigger an EIS under § 1508.27(b)(5). The EAand project record recognize that there is a local, non-migratory deer population in theproject area susceptible to long-term landscape impacts referenced in the precedingparagraph, a risk of localized wolf pack depletion, and observations of Queen Charlottegoshawks in the project area, which may be adversely impacted. [EA at 58, 69; PR 762_0177at 20-21]. Given these impacts, the consideration of the significance of uncertainties andrisks needs to reflect analysis of local impacts, and triggers the need for an EIS. [SeeAnderson v. Evans, 371 F.3d 475, 490 (9th Cir. 2004)]. The 9th Circuit has previouslyconsidered this issue in the context of authorizing hunting a specific wildlife population –gray whales – that overall represented a much healthier population across their range thanwolves or goshawks, and determined that substantial questions about local impacts triggeredthe need for an EIS:

There is no disagreement in this case concerning the EA’s conclusion that the impact ofthe Makah Tribe’s hunt on the overall California gray whale population will not besignificant. What is in hot dispute is the possible impact on the whale population in thelocal area where the Tribe wants to hunt. In our view, the answer to this question … issufficiently uncertain and controversial to require the full EIS protocol.

… Even if the eastern Pacific gray whales overall or the smaller PCFA group of whalesare not significantly impacted by the Makah Tribe’s whaling, the summer whalepopulation in the local Washington area may be significantly affected. Such local effectsare a basis for a finding that there will be a significant impact from the Tribe’s hunts.Thus, if there are substantial questions about the impact on the number of whales whofrequent the Strait of Juan de Fuca and the northern Washington Coast, an EIS mustbe prepared.

The crucial question, therefore, is whether the hunting, striking and taking of whalesfrom this smaller group could significantly affect the environment in the local area. Theanswer to this question is, we are convinced, both uncertain and controversial withinthe meaning of NEPA. No one, including the government’s retained scientists, has afirm idea of what will happen to the local whale population …. There is at least asubstantial question whether killing five whales from this group … could have asignificant impact on the environment. [Id. at 490-91 (emphasis added)].

The court further noted scientific concerns with localized depletions; and noted that littlewas known about the migratory movements of the whale population and its foraging needs.It concluded that the EA did not address substantial questions about impacts to the localpopulation and local ecosystem. [Id. at 493; see also Fund for Animals v. Norton, 281F.Supp.2d 209, 234 (D.D.C. 2003)(holding that “uncertainty as to the impact of a proposedaction on a local population of a species, even where all parties acknowledge that the actionwill have little or no effect on broader populations, is ‘a basis for a finding that there will be asignificant impact’ and setting aside a FONSI”)].

As explained in the preceding section, no one “has a firm idea” about how maintainingrecovering forests in the stem-exclusion stage in a heavily fragmented local ecosystem suchas Kosciusko Island will affect local wildlife populations. Importantly, both the goshawk andwolf populations persist at low levels, heightening the significance of local risks relative to thespecies considered in Anderson and Fund for Animals. Thus, local effects that the Forest


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Service acknowledges may adversely impact individual goshawks or increase risks toindividual wolves require analysis in an EIS.

a. The EA failed to adequately consider unknown risks to Queen Charlottegoshawks

The EA notes that Queen Charlotte goshawks have been observed in the vicinity of EdnaBay. [EA at 51; PR 762_0177 at 21]. The EA and project record recognize that QueenCharlotte goshawk populations are declining, and that there is uncertainty about theeffectiveness of Forest Plan conservation measures to provide sufficient habitat, but thenfailed to evaluate the considerable uncertainty about QCG populations and trends insoutheast Alaska with regard to the significance of local impacts to goshawks known toutilize the project area. The Fish and Wildlife Service’s 2007 status review explained thatQCGs in southeast Alaska are highly vulnerable to additional stresses – because of the lowpopulation level, “low survival or reproductive rates could not be sustained long beforeviability of the subspecies would be at risk.” [PR 0526 at 8-9 (USFWS (2007)].

Population levels are unknown; according to the Fish and Wildlife Service, southeastAlaska may support just a few to several hundred breeding pairs. [Id. at 48-49]. Intensiveclearcutting of private lands in southeast Alaska “has converted many watersheds to very lowquality habitat, or non-habitat, for goshawks. Loss of this habitat has likely contributed toat least local declines in QCG populations.” [Id. at 81]. Dr. Winston Smith’s recent analysisindicated that risks to QCGs under the TLMP are likely even greater than anticipated underthe 1996 risk assessments. [PR 0534 at 6]. Specifically, the 1996 risk assessment assumedthat the TLMP conservation strategy, particularly the reserve system, would in part mitigatehabitat loss from excessive timber harvest. [Id.]. However, Dr. Smith’s study indicates thatcontributions from reserves and other conservation elements (buffers) “might not mitigate thecumulative habitat loss in intensively managed landscapes.” [Id.]. Dr. Smith added thatthere is “evidence on nearby islands that extensive loss and fragmentation of habitat fromclearcut logging contributed to population declines of QCGs.” [Id.]. Dr. Smith’s analysisexplicitly stated that TLMP standards and guidelines “are unlikely to meet breeding-seasonhabitat objectives established for goshawk populations” in other areas. [Id. (citing (Reynoldset al. 1992); (McClaren et al. 2005)].

The analysis in the EA acknowledges this uncertainty – barely - but raises sufficient risksto trigger the need for an analysis in an EIS, adding that creating “an excess amount of early-seral (90 – 100 year-old) forest could increase the risk of not sustaining goshawks.” [EA at54-56]. Indeed, creating – and perpetuating – an excess amount of early seral forest isprecisely the result of the Kosciusko VMWIP decision. The record further shows that theResponsible Official was “comfortable with high risk with regards to surveying in younggrowth,” meaning that the Responsible Official recognized the risk of missing a QueenCharlotte goshawk nest, but disregarded that risk. [See PR 762_0008]. And the EAultimately concluded that the project “[m]ay adversely impact individuals, but [is] not likelyto result in a loss of viability in the Planning Area, nor cause a trend toward federal listing.”[EA at 57]. If the project may have localized impacts on a sensitive wildlife population, withlandscape conditions increasing those risks and uncertainty about the Forest Plan mitigationmeasures, the need for an EIS is clear based on Anderson v. Evans and Fund for Animals.But most importantly, the analysis never considers additional risks associated with loggingsecond-growth forests that the agency was aware could be or soon will be old enough toprovide nesting habitat. [See PR 762_0008]. The EA thus failed to consider, analyze, orrespond to risks associated with the loss of recovering forested habitat for Queen Charlottegoshawks, violating NEPA. [Seattle Audubon Society v. Moseley, 798 F.Supp. 1473, 1482(W.D. Wash. 1992)]. It is clear that clearcut and early seral stage habitats do not provide


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critical habitat features for Queen Charlotte goshawks. [PR 762_0526 at 103 (FWS 2007)].Thus, in its 2007 Status Review, the Fish and Wildlife Service stated that “[f]orestmanagement must … emphasize continued existence of mature and old forest to ensurepreservation of the species.” [Id. emphasis added)]. Scientists who considered the influenceof forest rotations on the long-term viability of the species “generally agreed that older secondgrowth resulting from timber rotations of 200 to 300 years could provide useful habitat, andwould reduce risk to goshawks, as compared to 100-year rotations.” [Id. at 105]. Thisproject proposes to immediately clearcut some of the oldest second-growth forest in theregion, and projects second-growth forest removals in the project area over the next 40 years.[EA at 3, 35]. But the analysis of impacts to Queen Charlotte goshawks focuses exclusivelyon old-growth removals, and thus ignores the risk associated with the loss of potential futurenesting habitat in a heavily fragmented area with barely enough old-growth forest currentlyto meet applicable habitat thresholds. [See, e.g. PR 762_0534 (Smith 2013)].

Moreover, the analysis in the EA and project record failed to respond to these risks withan evaluation of timber rotations that would in the long-term address these risks. The reviewof the TLMP conservation strategy anticipated ecological rotations of 300 years as likely tosustain goshawks (i.e. 1/3 of the forest in second growth <100 years old, 1/3 of the forest<200 years old, and 1/3 >200 years old), but noted this scale masked localized effects whichwould create gaps in distribution. [PR 762_0526 at 74]. It was anticipated that habitatquality could improve over the long-term as recovering forests mature – but not under a 100year rotation as proposed here. [Id. at 76-78]. If left alone, or thinned only from below [SeePR 762_0415 at 12], second-growth stands could provide suitable habitat in the long-termthat equate to 15% of the habitat value of productive old-growth. [PR 762_0526 at 99].These findings are consistent with recent studies showing successful Queen Charlottegoshawk utilization of mature second-growth forests. [PR 762_0526 at 102]. Furtherfragmentation, however, reduces the potential value of mature second growth for goshawkhabitat needs. [Id. at 102].

In sum, the Responsible Official and the environmental analysis failed to adequatelyexplain or provide convincing reasons in support of the effects determinations for QueenCharlotte goshawks and further failed to provide the information necessary to understandand evaluate project impacts, in violation of NEPA. [See Ecology Center, 430 F.3d at 1068].The uncertainty and analytical flaws could be addressed through an EIS that discloses andresponds to Dr. Smith’s study and the risks associated with short rotations in heavilymanaged landscapes that were identified in the record.

b. The EA failed to adequately evaluate uncertainties and unknown risks to wolves

Our comments on the draft EA identified significant risks to project area wolf populationsgiven the continued decline in wolf numbers in GMU 2. [PR 762_1151 at 3]. The EA doesnot address the current population concern in any meaningful way; it describes ADF&G’swolf harvest policy and assumed thresholds for unsustainable harvests, and cites theconclusion of the 1997 wolf viability panel that “there is a high relative likelihood that wolfpopulations would remain viable and well-distributed even with gaps in wolf distributioncaused by locally low deer populations or high harvest of wolves.” [EA at 69-71]. Aspreviously stated, the potential for local depletion, and not forest-wide viability, provides therelevant threshold for the significance determination.

Indeed, NEPA requires analysis of the site-specific impacts of a project, while the viabilitydetermination is made at the scale of the planning area. Compare 40 C.F.R. § 1508.27(a) with36 C.F.R. § 219.19. Moreover, the Forest Service cannot hide behind 20-year-old viabilitydeterminations while meeting its obligation to provide high quality information and accuratescientific analysis as part of its NEPA process. Ctr. for Biological Diversity v. U.S. Forest Serv. ,349 F.3d 1157, 1167 (9th Cir. 2003) (citing 40 C.F.R. § 1500.1(b)). The analysis here ignores


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recent population data and the precipitous continual decline of the GMU-2 wolf population,and fails to consider significant ongoing issues with wolf viability such as depletion ofbreeding females and reduced litter sizes. [See e.g. PR 762_0152, 0157 (Greenpeace 2015 a,b); Person & Russell (2009), provided now]. Most importantly, the consideration ofuncertainties and unknown risks in the DN/FONSI rely on an EA that never considered theexisting condition of Kosciusko with regard to local risks to wolf viability:

[W]hen about 40% of a pack’s total home range is logged and roaded, there is a veryhigh risk that mortality (mostly from hunting and trapping) will exceed reproductionand the pack area becomes a population sink. Indeed, when as little as 25% of a pack’shome range is logged, the ratio or reproduction to mortality is very close to one. Sinksare only maintained by immigration of wolves from other areas, which … is not likely onPrince of Wales given the population’s isolation and small numbers. [PR 762_0421 at 4(Person 2013 Decl.), emph. added].

Kosciusko Island is among the areas identified by Person as being beyond the 40% loggedand roaded threshold [map in Person 2014 Decl.]2 which creates a “very high risk” thatmortality would exceed reproduction. Thus, the record shows that project related roadconstruction will worsen this already “very high risk” and yet the DN/FONSI concluded thatthere were no unknown risks based on the assumption in the EA that the project would have“no direct effects to wolves.” [EA at 71]. Increased human presence on the island, fromlogging activities in this project and non-federal projects, will amplify the risk to wolves.

Also, as explained in our previous discussion, an agency cannot rely on mitigationmeasures in its determination of significance when data is lacking to prove the effectivenessof those measures. The EA’s Table 25 shows that within the project area’s WAAs (WAAs1525 and 1526) in the 4 recent regulatory years3 2010 through 20144 the criteria for risk ofpack depletion in two recent years when accounting for illegal take. [EA at 70]. But then itrelies on road management measures to control hunter access, the small human populationon the island, the mobility of wolves, and “potential benefits of young-growth management fordeer” as measures that mitigate risks to wolf sustainability associated with WAA 1525 roaddensities exceeding scientifically identified thresholds. [Id. at 72].

The brief paragraph [Id.] addressing the relationship between road density and risks towolves was insufficient to show a hard look under NEPA. The assumption that the smallhuman population of Edna Bay would somehow mitigate wolf harvest risks is unreasonablein light of previous unsustainable harvest on the island. It also is inconsistent with expertopinion in the record, which notes that the extensive network of marine waterways and roadsin the Prince of Wales Archipelago, which includes Kosciusko, makes it easy to transferhunting effort between islands. [PR 762_0421 (Person Decl. 2013)]. Also, according to theEA, this project alone will result in over one hundred jobs, mostly for logging (excluding thenumerous loggers working on non-federal land). [See EA at 39]. Further, there is no basis toassume that road closures will be effective. [PR 762_0421 at 14, 21]. As explained in

2 See Kosciusko Island in the map “Percent of Wolf Home Range (300 km2) Logged/Roaded,” Fig. 5 atpage 22, in PR 0422 (Person’s 2014 declaration). The island is almost entirely red, denoting >40%development, except a small portion of 25-40% development in the mountainous portion of theisland. Significantly, nearly all of the north and central portions of Prince of Wales Island and theislands adjacent to them are almost entirely >40% developed. As explained, the map was created inGIS with a moving window the size of a wolf pack home range. This map is also in the record in PR152 (our July letter to FWS), embedded at p.11.3 In ADF&G parlance, the regulatory year is the year that a season begins. For a season that spansparts of two years, as with the wolf season in GMU-2, harvest the 2014 season (for example) includeslate 2014 and early 2015 kills. See explanation in harvest reports.4 Data for regulatory year 2015 is not yet available.


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National Audubon Society, “[i]t is questionable whether an informed decision not to preparean EIS can be made absent an effort to quantify the amount of unauthorized traffic whichwill occur [related to road construction activities]” and to adequately consider the effects ofpresent and human access to wildlife “as a result of logging and increased ATV use resultingfrom the [increased road access].” [National Audubon Society, 917 F.Supp. at 288-89].

( i ). The EA failed to adequately evaluate uncertainties and cumulative risk tosustaining the wolf population

The Kosciusko EA, wildlife report and a response [PR 0163 at 19] to our comments on theDraft EA rely on discussions in Person and Logan (2012) and Person and Russell (2008)about what level of wolf harvest is sustainable in GMU-2 and about the past sustainabilityfailures in a number of WAAs there. The Forest Service continues to conclude that mortalityimpacts to the island’s population and not significant, and we continue to object to thatconclusion. At the least there is substantial uncertainty over cumulative effects concerningmortality and the risk posed to the population. Here are the facts as we see them, and ourexplanation.

The Person and Logan 2012 study was for Game Management Unit 2, which has 32wildlife analysis areas (WAAs). The study defines two kinds of unsustainable wolf harvest, aswell as several categories of mortality based on how many times various levels of annualreported (legal) harvest occurred with a 25-year period (1985-2009). See pages 6-16 of thereport. These include three categories of “pack depletion” and two categories of“unsustainable harvest.”

Pack Depletion

Person and Logan (2012) determined there is a risk of pack depletion (or pack turnover)when 7 or more wolves are harvested in a WAA. Earlier research showed that the averageautumn wolf population, including non-residents, is 9-10 wolves within a typical pack homerange of 300 km2 (116 mi2). This consists of a pack of 7-8 wolves plus 1-2 non-residents. Alikely assumption in setting the definition was that some of the harvest would include non-residents, since their annual mortality rate is far higher than for wolves in packs (residents).

Results: Over the 25 year period, in the 32 GMU-2 WAAs, reported take 7 or more:Condition: Category Occurrence

Pack depletion risked >= 1 time (no name) in 22 of 32 WAAsPack depletion risked >= 2 times High Risk in 16 of 32 WAAsPack depletion risked >= 5 times (no name) in 6 of 32 WAAs

(Summarizing Person & Logan 2012 at 12-13).

Unsustainable Harvest, Based on a 30% Harvest Cap

The definition of unsustainable harvest was derived by Person and Logan (2012) from theabove total population (resident plus non-resident) estimate for a typical pack home range (9-10 wolves)5 in combination with the Board of Game’s assumption for the level of reportedharvest that is sustainable, i.e. the regulatory harvest cap. (Person & Logan 2012 at 6). Atthe time of the Person and Logan (2012) study, the GMU-2 regulatory harvest cap was 30% ofthe autumn population, unit-wide. On that basis, it is clear that Person and Logancalculated:

30% x 10 wolves in a WAA = a harvest of 3 or more is unsustainable (Equ. 1)

Results: Over the 25 year period, in the 32 GMU-2 WAAs:

5 For Kosciusko Island, this is corroborated in Person & Ingle (1995).


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Condition: Category Occurrence

>= 3 wolves taken, >= 1 time Unsustainable in 29 of 32 WAAs>= 3 wolves taken, >= 5 times Chronically Unsustainable in 19 of 32 WAAs

Unsustainable Harvest, Based on a 20% Harvest Cap

The harvest cap was reduced to 20% by the Board of Game in January 2015, three yearsafter the Person and Logan (2012) study, because a substantial decline in the GMU-2population indicated the 30% harvest cap resulted in an unsustainable total mortality. Thiswas adaptive management. Applying the Person & Logan (2012) method to the new harvestcap, the calculation is now:

20% x 10 wolves in a WAA = a harvest of 2 or more is unsustainable (Equ. 2)

The EA did not analyze how the unsustainable harvest threshold definitions in Person andLogan (2012) were derived and how to adapt them to currently existing circumstances.6 Thatis, the evaluation criteria for unsustainability should be 2 wolves reported killed (and appliedto the sum of both WAAs’ data), not 3 wolves.

Applying That to Kosciusko Island WAAs (1525 and 1526)The two Kosciusko Island WAAs total 408 km2 (157 miles2)180 square-miles, but the

island supports only one wolf pack (Person & Ingle 1995, Person 2014, ¶¶10, 12). In the EA,Table 25 and the three paragraphs of text that accompany it are clearly a red herringbecause they treats the two WAAs separately, as if each WAA has one pack. The textdismisses the possibility of unsustainable mortality problems. The EA’s Table 26 does showisland-wide reported harvests, as does one panel in Table 20 of the wildlife report; however,even though that island-wide content is troubling, it is not discussed at all in eitherdocument. Our Table-1 (below) enhances that island-wide data by including columns thatidentify the above unsustainability categories that are triggered, and then we discuss theresults.

The years highlighted in yellow should get primary attention for two reasons. Forregulatory year 2010 (autumn 2010 to spring 2011), the Board of Game reduced the harvestcap, resulting in a drop in the GMU-2 reported harvest quota from 90 wolves to 60, and themost recent years should be the most relevant. The quota of 60 was in place until 2014when it was further reduced to 25 wolves.

The years highlighted in yellow should get primary attention for two reasons. Forregulatory year 2010 (autumn 2010 to spring 2011), the Board of Game reduced the harvestcap, resulting in a drop in the GMU-2 reported harvest quota from 90 wolves to 60, and themost recent years should be the most relevant. The quota of 60 was in place until 2014when it was further reduced to 25 wolves.

Table 1. Reported wolf kills for Kosciusko Island

Year Reported Category Reported x 1.5 Category Reported x 2 Category

6 This is an instance where adaptive management of the original calculations is necessary, due todecline of the population since when the former regulation determined was determined and theoriginal calculations were made.


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2003 2 Unsustainable 3 Unsustainable 4 Unsustainable2004 2 Unsustainable 3 Unsustainable 4 Unsustainable2005 1 1 2 Unsustainable2006 2 Unsustainable 3 Unsustainable 4 Unsustainable2007 0 0 02008 0 0 02009 1 1 22010 4 Unsustainable 6 Unsustainable 8 Pack Depletion2011 0 0 02012 6 Unsustainable 9 Pack Depletion 12 Pack Depletion2013 8 Pack Depletion 12 Pack Depletion 16 Pack Depletion2014 0 0 0

While the EA claims [at that wolf harvest was unsustainable “in only 2 years of the past12” in WAA 1525, and “in only 1 year in the past 12,” the table above shows that onKosciusko Island as a whole, the left section above shows that in 3 of the last 5 years theharvest was unsustainable, and in one of those years the pack was likely depleted. Themiddle and right hand sections show that the impact escalates into more frequent packdepletion if the 1.5x and 2x factors represent the amount of illegal take that occurred. Notethat the zero reported harvest in years 2011 and 2014 follow years of unsustainable harvestor pack depletion. As the rate of logging on Kosciusko increases, potentially with this projectcontributing to that increase, wolf mortality should be expected to increase both fromreported (legal) and illegal take, due to both more people on the island and increased roadaccess. Note that the annual quota that ADF&G establishes under the regulation appliesunit-wide, and that there no regulation of the amount of take on subareas such as KosciuskoIsland. Thus, the hunting and trapping pressure on the island’s population may increasegreatly in the near future.

Further Discussion

Regarding the above, Person and Logan noted that the earlier study:

Person and Russell (2008) reported that 38% total annual mortality may be close to thelimit of what wolves can sustain in GMU2 without declining, and they demonstratedthat legal and illegal harvest overwhelmed all other sources of mortality.

(Person & Logan 2012 at 6). They also “acknowledge our 30% harvest rate threshold [from theregulation] only allows a 5-8% buffer for illegal an unreported take, which Person and Russell(2008) indicated could be much higher in some areas.” (Id. at 7). Natural mortality must also betaken into account, and is believed to be about 4% yearly in GMU-2. (Person & Russell 2008).

Because Person and Logan stated a 5-8% buffer instead of just a straight-forward 8% buffer(38% minus 30% reported harvest), that means they actually considered the highest limit forsustainability to be a total mortality to be a range of 35-38%. Nonetheless, in our view this doesnot adequately account for illegal take (up to 46% of total human-caused mortality, according toPerson and Russell 2008) and natural mortality.

A closer look at Person and Russell (2008) is illuminating:

“In our study area, the wolf population declined significantly during 1993–1995 (Personet al. 1996). Annual mortality of radiocollared wolves averaged 55% during that period.Although not statistically different, average annual mortality was lower (38%) for wolvesmonitored during 1999–2004. Nonetheless, wolf population still declined during 1999–2002 (Alaska Department of Fish and Game 2003). Therefore, total annual mortality>38% likely was unsustainable. That result was consistent with an analysis ofdemographic studies of wolves in North America reported by Fuller et al. (2003), whichindicated annual mortality rates >0.34 generally resulted in population declines.”


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(Person & Russell 2008 at 1547, emph. added). Due to the nature of the study, with datafrom radio-collared wolves, two levels of unsustainable total mortality were determined. Thesewere for different cohorts of collared wolves studied at different times. The populations declined atmeasured total mortalities of 55% and 38%, indicating both were unsustainable. (Id.). Person andRussell were unable to test whether various mortality rates of less than 38% were sustainable,nor for that reason were they able to determine a reliably safe total mortality level formanagement purposes. They could only study mortality rates that actually happened to occur. Asnoted in Person et al. (1996), the actual level of maximum sustainable mortality for GMU-2 couldbe a lot less than the above 38%, even for a healthy population:

Fuller (1989) suggests that a 35-percent rate of total mortality for wolves could result indeclines. Other studies have reported populations declining when multiyear mortalityranged between 25 and 40 percent (Gasaway et al. 1983, Keith 1983, Peterson et al.1984). Wolves occupying islands (or other insular areas) in southeast Alaska will likelybe more vulnerable to overexploitation simply because mortality cannot be readilycompensated for by immigration from adjoining areas.

(Id. at 10).

Because the GMU-2 population is presently low (latest ADF&G estimate, fall 2014, 89with a range of 50-159), breeding demographics may be suppressing the population andlowering the sustainable total mortality even below the 25 to 40% levels suggested in theabove quotation. (See Person & Russell 2009; Creel & Rotella 20107). This includes reducedbreeding success and litter sizes reduced below the normally small litter sizes of GMU-2wolves, due to pack disintegration and other stress on a now quite small, persecutedpopulation. (Id.).

Opinion of the US Fish & Wildlife Service on the GMU-2 wolf population decline

On January 6, 2016, the US Fish & Wildlife Service issued its 12-month finding onwhether to list the Alexander Archipelago wolf under the Endangered Species Act. [81 Fed.Reg. 435-458]. Although a listing was denied, the agency found, based on in-depth review ofthe available science, that the GMU-2 population appears to have declined 75% since 1994,that unsustainable levels of reported and unreported harvest have been documented in theunit, that there is “compelling evidence” this contributed to the decline, and that wolfregulations for the unit are inadequate to avoid exceeding sustainable levels of take, at leastin some years. [Id. at 440, 447 and 450]. Relevant to the above discussions,

Although annual reported harvest of wolves in GMU 2 equated to only about 17 percentof the population on average between 1997 and 2014 (range = 6–33 percent),documented rates of unreported harvest (i.e., illegal harvest) over a similar time periodwere high (approximately 38 to 45 percent of total harvest) (Person and Russell 2008, p.1545; ADFG 2015b, p. 4). Applying these unreported harvest rates, we estimate thatmean total annual harvest was 29 percent with a range of 11 to 53 percent, suggestingthat in some years, wolves in GMU 2 were being harvested at unsustainable rates; infact, in 7 of 18 years, total wolf harvest exceeded 34 percent of the estimated population(following Person and Russell [2008, p. 1547], and accounting for natural mortality),suggesting that harvest likely contributed to or caused the apparent population decline.In addition, it is unlikely that increased reproduction and immigration alone couldreverse the decline, at least in the short term, owing to this population’s insularity (see‘‘Dispersal and Connectivity,’’ above) and current low proportion of females (see‘‘Abundance and Trend,’’ above). Thus, we conclude that wolf harvest has impacted theGMU 2 wolf population and, based on the best available information, likely will

7 We cited Creel and Rotella (2010) in our comments on the Draft EA, but the Forest Service deemedit to have “little relevance” to this project. [PR 0488, “Table of references not used in analysis”]. Wedispute that determination, and contend it is highly relevant. In part, dismissal of the paper was basedon the above supposed threshold of 38% mortality, which this section disproves.


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continue to do so in the near future, consistent with a projected overall populationdecline on average of 8 to 14 percent (Gilbert et al. 2015, pp. 43, 50), unless totalharvest is curtailed.

[Id. at 447]. Further:[I]n GMU 2, deer are projected to decline by approximately 21 to 33 percent overthe next 30 years, and, correspondingly, the wolf population is predicted to decline byan average of 8 to 14 percent (citation omitted). … For the GMU-2 wolf availability ofnon-ungulate prey does not appear to be able to compensate for declining deerpopulations, especially given other present stressors such as wolf harvest (citationomitted).

[Id. at 444-445, emph. added]. Also, “[I]n our review of the best available information, wefound … that roads constructed largely to support the timber industry are facilitatingunsustainable rates of total wolf harvest.” [Id. at 452].

This new information is telling, in concert with the preceding discussions. In particular,the quote block from pp. 444-445 gives a forward view of deleterious deer and wolfpopulation reductions from now to 2045, and it is a view that has not been taken intoaccount in the EA and the wildlife report. We believe this information highlights the need toallow many areas of second-growth forest to return to an old-growth condition over time,rather than commit them to patterns of rotational clearcutting (with that in our view in factencompassing all three silvicultural systems being planned for this project). A return offederal lands to an old-growth state is highly important on Kosciusko Island, because muchof the oldest and most productive second-growth exists there, and because doing thisnecessary to compensate for the very extensive and destructive State and private logging thatis bound to happen there.

Conclusion

The amount of annual total mortality that the GMU-2 wolf population can sustain, evenin the best of circumstances (e.g. with an abundant, non-declining population), has not beendetermined. It appears clear that the assumption of a 38% total mortality threshold and theaccompanying 30% harvest threshold were too high. This has been acknowledged by theBoard of Game in lowering the cap on reported harvest to 20% of the estimated population.As well, ADF&G used a lower 10% cap in the 2015/2016 season, given the low populationand the fact that earlier quota reductions had not stopped the population decline. (Thismakes our above table conservative, since it is based on 20%.) Further, in its January 201612-month Finding on the Alexander Archipelago wolf ESA petition, despite the change in theregulatory harvest cap that was set in 2015, the US Fish & Wildlife Service concluded:

[W]e think that wolf harvest regulations in GMU 2 are inadequate to avoid exceedingsustainable harvest levels of Alexander Archipelago wolves, at least in some years. Inorder to avoid future unsustainable harvest of wolves in GMU 2, regulations shouldconsider total harvest of wolves, including loss of wounded animals, not just reportedharvest.”

(81 Fed. Reg. at 450). And of course, illegal and natural mortality need to be consideredas well because total mortality, not just total harvest, is what determines whether apopulation is being sustained.

Finally, on Kosciusko Island which is one of the three islands in GMU-2 that is largeenough for a wolf pack to persist (Person & Ingle 1995), reported harvest in the above tableshows – even without accounting for illegal take – that the human-caused mortality wasunsustainable in 3 of the last 5 years, and that in one of those years the pack was likelydepleted with 8 kills reported. Nonetheless, on Kosciusko Island and the rest of GMU-2, thelevel of wolf harvest that is sustainable is uncertain even in normal circumstances, and maywell be zero at present. The level of risk to the persistence of wolves in those two areas is also


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of uncertain, but seems to be high, and is likely to have been underestimated in our abovetable, for reasons discussed in Person & Russell (2009) and Creel and Rotella (2010).

An EIS is required to address the significant questions surrounding the current status ofthe Kosciusko Island wolf pack, and the future impacts of significant logging and roadbuilding in the project area, including the influx of workers that will result.

c. The EA failed to adequately evaluate uncertainties and cumulative risk tosustaining the deer population

( i ). The EA has greatly exaggerated the deer carrying capacity of KosciuskoIsland.

As we noted in our comments on the Draft EA [PR 0151], in using the deer model toestimate Kosciusko Island’s carrying capacity for deer, the Forest Service used a deermultiplier that is unsuited to the local conditions. The agency refused to take a hard look atthe issue, contrary to NEPA, by making only the merest mention of it and not even disclosingthe multiplier values that are at issue providing meaningful discussion. The EA says only:

Comments on the DEIS 2002 Kosciusko Timber Sales project included ADF&G deerresearch biologist Matt Kirchhoff suggesting that the deer model multiplier be changed(lowered) to reflect the low elevation, year-round non-migratory deer population in theproject area. The lack of high-value alpine habitat may indicate a non-migratory deerpopulation occupying the area all year, with little seasonal variation (Ingle 2002, p. 13).

As a preliminary matter, we commented on the topic in our Draft EA comments, notKirchhoff. We documented expert advice he had provided within ADF&G that is specific toKosciusko Island. Specifically, he said that a deer multiplier of 35 or 40 instead of the normal100 should be used in applying the deer model (which is a winter habitat model) toKosciusko and Gravina Islands, because deer occupy the winter habitat all year for thereasons indicated above. Using the suggested multipliers would result in reduction of theestimated deer carrying capacity by a very substantial 60% or 65%, and neither hissuggested multiplier values nor this was disclosed in the EA.

Applying either of these corrections to the deer model results (or directly using one on thesuggested multipliers in the first place when running the model) would have resulted inpervasive changes throughout much of the parts of the EA concerning deer, wolves andsubsistence deer hunting. This includes Tables 20 through 24 and discussions withnumerous recitations of carrying capacity number on pages 62-64 and 67-69.

We provided a table on page 6 of our Draft EA comments, providing corrections to theDraft EA’s carrying capacity values on “NFS-only” lands for 1954, the current time, and the 4alternatives at stem exclusion. We reject the used of NFS-only deer carrying capacity statisticfor reasons explained elsewhere, but had no alternative because the Draft EA did not providevalues for “all lands” regardless of ownership. We complained, and all-lands data has beenprovided in the Final EA [PR 0163 at 14-15, Responses to Comments], although ¾ despiteour other complaint ¾ but still using a deer multiplier of 100 instead of Kirchhoff’srecommended 35 or 40. Therefore we provide Table-2 (below) showing the vast difference:

Table 2 ¾ Kosciusko Island's carrying capacities, recalculated with Kirchhoff's Multipliers


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WAA 1525 (All Ownerships) WAA 1526 (All Ownerships) Kosciusko (All Ownerships)

CarryingCapacity

(deer/mi2)

Final EA(Table 24)multiplier

= 100

Adjusted,multiplier

= 35

Adjusted,multiplier

= 40


= 100

Adjusted,multiplier

= 35

Adjusted,multiplier

= 40


= 100

Adjusted,multiplier

= 35

Adjusted,multiplier

= 40

Historic (1954) 30.3 10.6 12.1 23.4 10.6 12.1 26.8 10.6 12.1Current 17.8 6.2 7.1 21.2 6.2 7.1 19.5 6.2 7.1Alt-1 stem excl. 17.7 6.2 7.1 21.2 6.2 7.1 19.3 6.2 7.1Alt-3 stem excl. 17.6 6.2 7.0 21.2 6.2 7.0 19.3 6.2 7.0

The Draft EA takes comfort in the model results it presents, being close to or well abovethe standard and guideline of 18 deer per square mile, in ranging from 17.6 to 30.3.However, the revised results above provide no comfort.

The reason for not using one of Kirchhoff’s multipliers is given in the response tocomments [PR 0163, at 13], and amounts to an admission that the best available science wasdeliberately not used:

These comments stated that a deer multiplier of 35 or 40 should have been usedinstead of 100. The 2008 Forest Plan states to run the deer model using the most recentinteragency approved version. This is what was done for this project, therefore arevision of the EA and Wildlife Resource Report are not necessary.

That is, the generic 2011 direction for use of the model was followed, instead of applying thebest available science, which also happens to be local knowledge. The superior directive forproviding deer habitat capability is Forest Plan standard and guideline XIV.A.2, which states:

Local knowledge of habitat conditions, spatial location of habitat and other factors needto be considered by the biologist rather than solely relying on model outputs.

In this case, the local and spatial8 knowledge from Kirchhoff improves the accuracy of themodel (rather than serving as an adjunct to it), and although this eventuality wasunforeseen by the drafter of the standard and guideline, it is within spirit of the provision forimproving the assessment of the ability of the habitat to support deer. Further, since the IDTfelt bound by the 2011 directive, it could have requested a waiver to use a more appropriatedeer multiplier. There is no correspondence in the planning record that indications such arequest was made.9 Or, to the extent that the IDT was irrevocably bound to using the 2011directive’s deer multiplier, it should have interpreted the model results in a way thataccounts for the “local and spatial knowledge” of habitat conditions that standard andguideline XIV.A.2 requires. Instead, the EA simply offers the sterile conclusion (uncoupled toany discussion of local conditions) that “based on modeled deer densities alone on lands inall ownerships both the individual WAAs and the Island are likely capable of supporting

8 As well as being local to the planning area, the knowledge that Kirchhoff conveyed though the Ingle(2002) letter is spatial in that it considers the spread of various kinds habitat across the island,including in elevation, and considers that in relation to how the deer model evaluate habitat. Kirchhoffwas one of the architects of the deer model [e.g. Suring et al. 1993, copy provided], was a resourceexpert to the 1990s TLMP deer and wolf panels, and was a co-author of the Wolf ConservationAssessment [PR 0503 (Person et al. 1996)].9 Additionally, the points raised by Kirchhoff through ADF&G’s 2002 letter (Ingle 2002) andthe effect the lower multipliers would have caused the Gravina Island Timber Sale Projectdecision to be withdrawn on appeal in 2004.


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wolves”. EA at 72. Without interpreting model results through the lens of local knowledge ofhabitat conditions, the Forest Service failed its duty to take a hard look.

Because: (1) deer model results that are determined by applying the best available scienceare dramatically below the carrying capacity values in the EA; (2) these low values raisequestions about cumulative impacts to wolves and subsistence that have not been discussed;(3) the low values raise questions about compliance with NFMA, ANILCA and the ForestPlan; and (4) the EA discussions use much higher values whose appropriateness has beenquestion yet not discussed, and which are prominent in the deer, wolf and subsistenceissues sections ¾ substantial uncertainties and risks exist that need to be resolved with anEIS, instead of an EA.

In deciding against preparation of an EIS, the agency must demonstrate that it (1) took ahard look at the environmental consequences of the action; (2) based its decision on aconsideration of all relevant factors; and (3) provided a convincing statement of reasons toexplain why the project’s impacts are insignificant. Native Ecosystems Council v. U.S. ForestServ., 428 F.3d 1233, 1239 (9th Cir. 2005). The Forest Service’s uncritical application of thegeneric deer model to the severely degraded Kosciusko Island project, when expert local areaknowledge advised a better way to apply it, did not satisfy the agency’s NEPA duties.

3. The DN/FONSI failed to consider unknowns with regard to the Transition, andeconomics of second-growth management.10

When the IDT first set to work on this project, it was made explicitly clear by managementthat this NEPA process would be unusual in the way it attempted to address uncertainty.The District Ranger wrote for example that this project “represents a departure from ourusual approach to NEPA planning,” and that the “team will need to work with me toincorporate uncertainties [including] CMAI, the Sealaska Bill, the economic feasibility ofyoung growth management and other issues that will undoubtedly arise…” PR 762_0002.See also e.g. PR 762_0005 (project represents “different approach”); PR 0006 (noting thatdifferences from the NEPA standpoint were the projects uncertainties, including ones withsignificant effect to wildlife); PR 0008 (discussing uncertainty of CMAI, and ways to buildframework for a long-term plan on the island).

For the most part this uncertainty derives from the currently in-flux state of thetransition. There has never been a second-growth logging industry in this part of the world.The current Forest Plan is premised on continued old-growth logging, drawing doubt on thelong-term appropriateness of land use designations, among other uncertainties. It isuncertain whether there is a demand for this wood, and if there is, then where it might go.The CMAI issue adds further uncertainty as to even the legality of short-rotation second-growth management. Whether or not the transition takes shape—and if it does, then whatshape that will be—is profoundly uncertain.

As discussed above, the effects of the proposed forestry practices on these lands areuncertain from a silvicultural as well as a wildlife perspective. The proposed harvest unitshave scarcely been surveyed; stand response to the proposed treatments is uncertain; andthe quality of wood and (very importantly) markets for the wood are uncertain. Whileflexibility certainly has its economic advantages, it remains incumbent on the agency todisclose and analyze the resulting uncertainties in an EIS.

10 See Blue Mountains Biodiversity Project, 161 F.3d at 1213 (discussing (b)(5) and noting that BMBPwas concerned about increased in sediment loading that would harm fish habitat, especially in light ofsediment issues associated with existing project area condition – the EA did not documentsedimentation increases.


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The FONSI and EA however fail to disclose or evaluate this uncertainty head-on. Thedecision-maker and public are left with the misleading impression that what is proposed isordinary, even routine. In fact, as argued above, this project is a precedent-settingdemonstration for a particular brand of ‘transition.’ Whether or not it will work is anybody’sguess. The very fact that the agency felt compelled to craft a demonstration project illustratesthe recognized need to resolve some of the uncertainty in the transition debate by laying outhard and fast options on the ground. Unfortunately, the agency failed to take the next steprequired by NEPA, and take a hard look in an EIS at the important uncertainties thisdemonstration project raises.

In its response to comments, the Forest service suggests meekly that the activitiesproposed are consistent with the current Forest Plan, and are commonly carried out nation-wide so effects are predictable. The fact is however that this project is unique in both timeand space. This project is not routine here—it is a self-conscious and deliberate break frompast policy. Even if it could be characterized as not violating the old forest plan, the project isvery clearly designed to drive the forest and the project area in a different direction. Thisproject is also not similar by comparison with projects a thousand miles south, in differentclimates, with different tree species, and radically different histories and economicinfrastructure.

4. Conclusion and Suggested ResolutionFor all of the above reasons, it is necessary that an EIS be prepared for this project.

B. Objection Point 2: The Responsible Official arbitrarily determined that the KosciuskoVMWIP would not establish a precedent for future actions

This objection point includes all relevant facts and conclusions in the pages above. Our comments on thedraft EA requested that the Forest Service consider “[t]he degree to which the action mayestablish a precedent for future actions with significant effects or represents a decision inprinciple about a future consideration.” [PR 762_0151 at 4; 40 CFR § 1508.27(b)(6)]. Wenoted that this project decision raised substantial questions about future impacts – (1) fortimber values, is it better to delay harvest in order to maximize tree growth; (2) for otherresource values, is it better to use partial cutting prescriptions and (3) most importantly is itbetter to let the federal second growth on Kosciusko Island succeed to an old-growth stategiven wildlife concerns instead of being fully rotated a second time over in what would beapproaching the same timeframe that the return to old-growth require? [PR 762_0151 at 4].We recommended that the Responsible Official recognize the significance of these threeimportant questions and evaluate this pilot project with an EIS that takes a hard look atthose choices. [Id.]

The Responsible Official determined that the Selected Alternative does not establish aprecedent for future actions and was within the scope of the 2008 Forest Plan. [DN/FONSIat 8]. The determination under § 1508.27(b)(6) was arbitrary. The decision for this project isa commitment as to how the Forest Service will manage recovering, second-growth forests onKosciusko Island. The EA acknowledges that this project is the very first large-scale second-growth timber project and precedes the development of a programmatic approach. [EA at15]. The project will implement the beginning stages of a long-term plan to manage second-growth forests in the project area and inform future management decisions. [Id. at 15-16].The EA projects timber removals on the island through 2056 based on the assumption that“if we pick an action alternative proposed in the Kosciusko Project EA, that same style ofmanagement would be applied across all Forest Service young-growth on the Island into thefuture and beyond this particular NEPA document.” [EA at 34].


25

Consequently, the Decision and EA set a precedent for each of the three questions raisedin our introduction to this section: (1) a commitment to future clearcutting of second-growth; (2) a commitment to shorter-term rotations, thus foregoing future volume and growthand (3) because of the first two commitments, a decision to prevent much of the second-growth forest from developing old-growth characteristics in the future. The precedent forfuture actions with significant effects is thus evident in the EA, which establishes a long-termharvest strategy for the Selected Alternative by proposing in the future to clearcut 59.5MMBF, patch clearcut 105.3 MMBF through two-aged harvest and two entries and removean additional 210.4 MMBF through multiple uneven-aged harvest entries. [EA at 35, Table6]. The decision sets a precedent that would reduce the long-term value to the public shouldthe scenario ever arise where managing second-growth for timber become economicallyfeasible:

Stands proposed for commercial young-growth harvest (stand origin date 1951-1960)would average about 34.6 MBF net in the year 2016. By year 2056 those same standswould average 91.4 MBF per acres, net. Assuming we harvest these stands on a 60-year rotation and each rotation produces about the same volume, we would haveproduced 103.8 MBF per acre. If the same stands were harvested on a 90 year rotation,after 180 years or two rotations, they would produce about 182.8 MBF per acre, or 76%more volume. [EA at 34].

The project record shows that the IDT team understood that the above considerationsmeant that this project is “[s]etting the stage for how we’re gonna manage land in the future.”[PR 762_0017]. See also e.g. PR 762_0006 (discussing “perpetual tree farm,” andaccomplishment of a programmatic program in an EA through “word choices”); 762_0008(discussing how this decision is being used to build the framework for the long-term plan onthe island). The selection of an alternative “committed” the agency to that course – and thedecision here is to increase volume in the short-term rather than accept lower volumes in theimmediate future and dedicate more effort to mitigating the effects of timber removals byadjacent landowners. [PR 762_0017]. As explained in Section II.A.1 of this objection letter,the decision also sets a precedent with regard to the other major concerns – it sets aprecedent for clearcutting rather than lighter touch silvicultural prescriptions, and preventssecond-growth forests from recovering to old-growth habitats which “still have significantlygreater quality than any of the second growth habitats” treated through gap or thinningtreatments. [PR 0387 at 9].

The Decision also commits the project area to a particular long-term course of actionthrough its physical features. Building, reconstructing, and storing roads in condition forfrequent re-openings binds the agency in a very real sense to following through with short-term commercial rotation of this second-growth. The choice to use clearcuts and “two-aged”patch cuts (clearcuts with clumps) commits the agency to following through with pre-commercial or restoration thinning, and to looking elsewhere for the lost potential volumefrom these stands. The buildup of infrastructure here, which is deemed economicallyimportant for the ‘transition’ to second-growth logging, insomuch as it occurs would furtherbind the agency to industrial development of a certain sort on these lands. Bringing inequipment like feller-bunchers, developing skills like falling and yarding clearcuts, anddeveloping markets for poor-quality, short-rotation second-growth obviously serve to bind theagency to continuing to provide trees to cut in that way and sell to those markets.

The precedent-setting effect of this project is greatly compounded by its status as a “pilot”project for the vaguely-defined but highly controversial “transition” from an old-growth to asecond-growth timber industry. The record reflects that the purpose and driving force behindthis project was precisely the desire to set a precedent. See e.g. PR 762_0002 (letter fromWashington Office identifying project priority because of the “transition”); 0005 (discussing


26

how Washington Office wanted a demonstration project for the transition, and the local officeoffered up Kosciusko)

In its response to comments, the agency characterized the way this project would informfuture decisions as simple adaptive management. PR 762_00163 at 7 – 9. “This project is notan experiment,” the agency claims, and is similar to activities that are “commonly used inforestry across the country.” Id. These conclusory statements belie the facts. The soils,climate, tree species and diversity, rates of climate change, species diversity, geographicremoteness, history, and a host of other differences make the job on the Tongass unique. Theagency experts know this, which is why they (wisely) do not attempt to justify or analyze thisproject by using science or techniques from Outside. The Tongass is, self-evidently, notcomparable to any other National Forest. As discussed in more detail in Section II.A, there isvery little information available for the Tongass regarding the effects of second-growthmanagement techniques, the rates of second-growth stand development, the values ofsecond-growth to wildlife, or the economic feasibility of sustaining an industry with second-growth sales. The activities here are not similar to those elsewhere in the country as to thosecritical questions. This project was specifically designed to address and answer those broadquestions.

The agency is perhaps correct that this project is not an “experiment.” It is somethingmore. It is a demonstration project that is deliberately designed to push forward animportant change of policy direction. The 2008 TLMP does not, of course, call for anytransition out of old-growth, or attempt to establish a new second-growth logging industry inAlaska. If it had, the Secretary could not have issued the call for a change of policy, and theagency would not now be revising the TLMP for that specific purpose. The project record, inparticular the notes from IDT meetings, show quite clearly that the IDT, and higher-ups inWashington D.C., had in mind to try to drive the development of that new policy. The State ofAlaska, which was allowed into the IDT, sought very directly to drive home the maximumprecedent-value for this sale for their chosen image of the transition.

We do not expect the agency needs convincing that the transition is an extraordinarilycontroversial bit of policy that is currently very much in a state of play. The meetings,committees, subcommittees, reports and studies have been legion. The draft Decision in factcomes during the comment period for a revision to the TLMP. The transition is the topic ofwidespread, passionate debate because it is so important to the future of Southeast Alaska.

To be clear, our objection here is not to pursuit of a transition out of old-growth. Theobjection is that the decision ‘stacks the deck’ in the transition decisions in favor of aperpetual tree farm model on Kosciusko island without taking a hard look in an EIS

These decisions “may establish a precedent for future actions with significant effects orrepresents a decision in principle about a future consideration” under § 1508.27(b)(6). InNational Audubon Society v. Hoffman, a court reviewed an EA for the Lamb Brook project thatauthorized project area activities that included, as with the Kosciusko VMWIP, efforts toaddress wildlife habitat concerns while at the same time authorizing clearcuts anddeveloping infrastructure for future timber entries. [National Audubon Society, 917 F.Supp.at 283]. Also, as with the Kosciusko VMWIP, the project occurred in an area zoned forintensive timber management. [Id.]. Notably, the project occurred on a much smaller scale,treating 1,239 acres overall, with commercial timber harvest of 3.2 MMBF on 300 acres ofland and construction of 1.3 miles of road. [Id.; cf. Shenandoah Ecosystems Defense v. U.S.Forest Service, 24 F.Supp.2d 585, 588-90 (W.D. Va. 1988)(declining to require an EIS for aproject that involved 600 acres of silvicultural treatments that did not include clearcuttingand noting that the project was of much smaller magnitude than in National AudubonSociety, which did require an EIS)]. A key similarity between the Lamb Brook EA and theKosciusko VMWIP EA was that both analyses envisioned future clearcuts of hundreds of


27

acres that would “convert those areas into ‘early successional habitats.’” [National AudubonSociety, 917 F.Supp. at 285]. The court explained that:

By its very nature, the Management Area […] requires continuous timber harvesting. …Overall the Court finds Alternative 3 necessarily contemplates a long-term commitmentto harvest trees to keep certain areas thinned or cleared. Because the current planestablishes a precedent which will require an unclear amount of future tree removalactivities, preparation of an EIS is appropriate. See 40 C.F.R. § 1508.27(b)(6). [Id. at288].

The Kosciusko VMWIP EA similarly commits to future timber removals, yet on a muchlarger scale than contemplated for the Lamb Brook project. Objectors submit that the failureto prepare an EIS for the Kosciusko VMWIP reflects an unreasonable determination underintensity factor (b)(6). As a suggested resolution, Objectors request that the Reviewing Officerdirect the Responsible Official to withdraw decision to proceed with commercial timberharvests authorized under the draft DN, and either prepare an EIS or delay further work onthat component of the project pending completion of the TLMP Amendment process.

1. Conclusion & suggested resolutionThe project will create a precedent for other projects, and preparation of an EIS is

therefore necessary.

C. Objection Point 3: The Responsible Official arbitrarily determined that the project willnot have significant cumulative effects

This objection point includes all relevant facts and conclusions in the pages above. Ourcomments on the draft EA expressed concern about significant cumulative impacts arisingfrom this project and pending logging projects on non-federal lands. [PR 762_0151 at 3; 40C.F.R. § 1508.27(b)(7)]. We explained that sacrificing roughly 1,000 to 1,500 acres of thissubstantially regenerated second growth is a significant cumulative impact because westernKosciusko Island has already been heavily impacted by logging, and the enormous amount offoreseeable logging on many thousands of acres of non-federal forestland – both old-growthand second-growth – will substantially modify the landscape and cumulatively reduce theamount of second-growth that would in time recover to the point where it provides old-growth habitat conditions for wildlife and other forest resources. [PR 762_1151 at 2-3]. Wethus explained that an EIS needed given the relation to other actions with cumulativelysignificant impacts. [PR 762_0151 at 4; 40 CFR § 1508.27(b)(7)]. Importantly, “[s]ignificanceexists if it is reasonable to anticipate a cumulatively significant impact on the environment.”[40 CFR § 1508.27(b)(7)].

NEPA requires that agencies consider cumulative actions in determining the scope ofenvironmental impact statements, meaning actions “which when viewed with other proposedactions have cumulatively significant impacts and should therefore be discussed in the sameimpact statement.” [40 C.F.R. § 1508.25]. Such analysis must do more than enumerate theeffects of projects. Or. Nat. Res. Fund v. Brong, 492 F.3d 1120, 1133 (9th Cir. 2007)(cumulative effects analysis must do more than describe related projects; it must “enumeratethe environmental effects of those projects”). As explained by the Supreme Court, underNEPA, “proposals for … actions that will have cumulative or synergistic environmentalimpact upon a region … pending concurrently before an agency … must be consideredtogether. Only through comprehensive consideration of pending proposals can the agencyevaluate different courses of action.” Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976). Inparticular, timber agencies must consider the cumulative impacts of pending removals ofmillions of board feet of timber from other activities occurring in the same watershed affectedby a specific project in a NEPA document. [Blue Mountains Biodiversity Project, 161 F.3d at1251; Klamath Siskiyou Wildlands v. BLM, 387 F.3d 989, 994-95 (9th Cir. 2004)]. The need for


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a detailed cumulative effects analysis is even more compelling when the impact of futuredevelopment is greater than the impact of the analyzed project itself, and “the potential for …serious cumulative impacts is apparent.” [Te-Moak Tribe v. U.S. DOI, 608 F.3d 592, 605-606(9th Cir. 2010). And it is the addition of incremental impacts that is important, concerningcumulative impacts. Envtl. Prot. Info. Ctr. v. Blackwell, 389 F. Supp. 2d 1174, 1189 (N.D. Cal.2004) (“As a final point, the Court notes that it is troubled by the cumulative impactsanalysis of the FS because it is not clear that the agency necessarily looked at the‘incremental impact of the action when added to other past, present, and reasonablyforeseeable future actions” as required by the regulations implementing NEPA. While thewildlife specialists’ reports do discuss past, future, and proposed/existing timber sales, thereports do not clearly aggregate the various sales to determine their cumulative impacts.”).And the additive effect necessarily involves both agency and other actions. Mountaineers v.U.S. Forest Serv., 445 F. Supp. 2d 1235, 1248 (W.D. Wash. 2006) (“It is the additive effect ofboth agency and other actions taken together that constitutes the gravamen of appropriatecumulative impacts analysis under NEPA.”).

Here, the potential for serious cumulative impacts is apparent from the EA. The EArecognized that the cumulative impacts resulting from past and prospective activities onprivate lands and the scale and frequency of harvest entries were “potentially key orsignificant and within the scope of the project.” [EA at 8]. It thus discloses that “[t]here is ahigh likelihood that substantial changes to forest structure would occur in the project areaas a result of cumulative large-scale State and private timber harvest within the next 10years.” [Id. at 38]. As we have emphasized through this objection letter, if there aresubstantial questions about significance, the Forest Service must prepare an EIS. Acumulative impacts analysis “requires ‘some quantified or detailed information” and “must bemore than perfunctory; it must provide a useful analysis of the cumulative impacts of past,present, and future projects.” Klamath-Siskiyou Wildlands Center v. BLM, 387 F.3d 989,993-94 (9th Cir. 2004)(citations omitted). However, the Responsible Official arbitrarilydetermined that “based on project design and available scientific information, the SelectedAlternative is not related to other actions with individually insignificant but cumulativelysignificant impacts.” [DN/FONSI at 8].

As the 9th Circuit has explained:Cumulative impacts of multiple projects can be significant in different ways. The mostobvious way is that the greater total magnitude of the environmental effects – such asthe number of acres affected or the total amount of sediment to be added to streamswithin a watershed- may demonstrate by itself that the environmental impact may besignificant. Sometimes the total impact from a set of actions may be greater than thesum of the parts. For example, the addition of a small amount of sediment to a creekmay have only a limited impact on salmon survival, or perhaps no impact at all. Butthe addition of a small amount here, a small amount here, and still more at anotherpoint could add up to something with a much greater impact, until there comes a pointwhere even a marginal increase will mean that no salmon will survive. [KlamathSiskiyou Wildlands Center, 387 F.3d at 994].

Kosciusko Island will be subject to much more than the small, incremental impacts fromindividually insignificant actions as described above, but rather to intense logging for theforeseeable future. As the EA discloses, the state of Alaska and University of Alaska haveongoing projects which will clearcut the majority of their acreage in one block. ]EA at 36].These two adjacent projects both occur on southern Kosciusko Island and will result in acontinuous clearcut of approximately 3,100 acres, with Sealaska expected to clearcut over8,000 acres over the next decade. [Id. at 37]. Federal logging proposed in the KosciuskoVMWIP lies in between the state and University clearcut and Sealaska’s land. [Id.]. Thus,“[t]here would be the potential for the University, State, Forest Service and Sealaska harvestareas to essentially coalesce into one expanse of homogenous stand structure approaching


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12,000 acres in size,” resulting in a scarcity of advanced forest structure over a large portionof the project area. [Id.].

1. The cumulative impacts of this project and non-federal clearcuts are significant,warranting analysis in an EIS

The Forest Service had previously anticipated that the impacts of a potential landconveyance to Sealaska would be significant enough to warrant a revision of the Forest Plan.This conclusion alone means that the decision to analyze the impacts of that conveyance inan EA authorizing extensive clearcutting in the same area is arbitrary. Section 3002 of theCarl Leven and Howard P. “Buck” Mckeon National Defense Authorization Act for Fiscal Year2015 (the “Sealaska Land Entitlement Finalization” resulted in the conveyance of 11,970acres of land to Sealaska Corporation and thus “changed the land ownership and landmanagement of the project area.” [EA at 1]. NFS lands now comprise roughly two-thirds ofthe project area (37,000 out of 57,000 acres) and 57% of the NFS acres are currentlydesignated for Timber Production. [PR 762_0173 at 3].

Our comments on the draft EA also noted that pending logging on non-federal forestlandsupsets the assumptions made in TLMP and its conservation strategy. [PR 762_0151 at 3].The TLMP FEIS explained that “implementation of the Sealaska proposal would require aForest Plan revision based on the magnitude of changes in land use designations.” [TLMPFEIS, Appx. C at C-3]. That determination reflected “net losses in the Conservation Strategy”and “the lack of ability in making up key lands associated with the old-growth reserves.”[TLMP FEIS, Appx. C at C-3; see also EA at 48 (recognizing that the final legislation impactedproject area old-growth reserves, but improperly deferring analysis to the Forest PlanAmendment process)].

The EA discloses the extent of upcoming non-federal logging which would include 1,383acres of state land clearcuts, 1,530 acres of University of Alaska land clearcuts, and slightlymore than 8,000 acres of Sealaska clearcuts. [EA at 36-37]. The scale is enormous, andlogging will occur pursuant to the weak Alaska Forest Resources and Practices Act, whichhas no provisions to protect terrestrial wildlife or their habitat and has no limits to the extentof logging (other than very minimal stream buffers). These impacts alone are significantwithin the meaning of NEPA, and any federal timber project occurring in adjacent areas mustreceive analysis in a full EIS.

The EA focuses exclusively on the impacts of the project itself in measuring cumulativeeffects, which it terms, for several metrics used to evaluate impacts to deer, negligible. [SeeEA at 61-63]. There are several critical problems with the approach to cumulative effectsanalyses provided in the EA. First, even it were true that the impacts of federal logging wereminor relative to non-federal logging, the purpose of a cumulative impacts analysis is toconsider all these impacts together in determining significance. If, as indicated in the EA,“[t]here is a high likelihood that significant changes would occur in the project area as aresult of cumulative large-scale” non-federal logging, and federal logging is ongoing,significance exists and the Forest Service must prepare an EIS. Second, the analysesimproperly break down the cumulative impacts into small component parts temporally. [40C.F.R. § 1508.27(b)(7)]. Specifically, the EA limits the effects of the project to the immediatereduction in acreage at stem exclusion, and thus omits consideration of the futurecumulative impacts of federal clearcuts in combination with non-federal clearcuts. This erroris reflected in Table 19, which measures the acreage at stem exclusion and shows a decreasein those acres. [EA at 61, Table 19]. But those acres, just as with the non-federal lands, willagain return to stem exclusion and require 50 – 150 years to recover to understoryreinitiation. [Id. at 66]. The final and most critical error, is that nowhere, for any resource,do the cumulative effects analyses consider the long-term impacts of precluding second-growth forests from reaching a condition where they can provide old-growth habitat values.


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Indeed, the cumulative effects analysis for forest structure states that it would not beexpected that state and private old and second-growth stands “would not be allowed to growlong enough into the future to fully obtain understory re-initiation structure.” [EA at 37].The EA identifies the “potential for the University, State, Forest Service and Sealaska harvestareas to essentially coalesce into one expanse of homogenous stand structure approaching12,000 acres in size” but Alternative 3 would “somewhat mitigate” that impact. [EA at 37].There was no effort to disclose or analyze that Alternative 3, with its clearcut and patchclearcut prescriptions, will produce the exact same result over time. This problem carriesover into the wildlife analysis, where the EA recognizes that cumulative impacts from otherlandowners would increase fragmentation and reduce connectivity, and explains that NFSlands would provide the only corridor between the southern and northern parts of the island.But then it ignores future impacts of ongoing federal clearcuts. All it says is “Alternatives 3and 4 were designed to improve these connections” and “[t]he harvest of these acres on otherownerships increases the importance of the proposed treatments on NFS lands. [EA at 46-47]. But is it not true that in 25 years, federal clearcuts will again have the same effect? TheEA never considers this future impact, and this analytical failure is arbitrary and violatesNEPA.

Also, as noted in the preceding section, the EA also anticipates considerable future federalclearcutting in the project area. The cumulative effects analyses in the EA never factor in theagency’s long-term plans to remove as much as 210.4 MMBF of timber over the next fortyyears. [EA at 35]. In the specific context of timber sales, in Blue Mountains BiodiversityProject v. Blackwood, the 9th Circuit explored the Forest Service’s refusal to evaluate thecumulative impact of multiple logging projects occurring in the same watershed in the NEPAanalysis for a salvage logging project. [Blue Mountains Biodiversity Project v. Blackwood, 161F.3d 1208, 1215 (9th Cir. 1998); see also Curry v. U.S. Forest Service, 988 F.Supp. 541, 552-53 (W.D. Pa. 1997)(finding it “particularly troubling” that the Forest Service failed to analyzethe combined effects of present and future timber projects given the scale of the initial entryand failure to explain plans for future logging in the same area)]. The logging projects wouldhave logged 40 – 55 MMBF of timber from the same watershed, involve steep slope loggingand entail 20 miles of road construction. [Id.]. The court found that the projects werereasonably foreseeable and required a cumulative impacts analysis based on priordevelopment as part of a forest recovery strategy and prior disclosure of sale names,quantities and timelines prior to the release of the NEPA analysis for the project. [Id.]. The9th Circuit also reviewed a similar case this year, and determined that the pendingCottonwood timber project was reasonably foreseeable based on BLM’s “focus on details” sothat “many elements of the Cottonwood project were already firmly established.” [Soda Mt.Wilderness Council v. U.S. BLM, 607 Fed. Appx. 670, 672 (9th Cir. 2015)]. As explained inanother recent Ninth Circuit case, League of Wilderness Defenders/Blue Mts. BiodiversityProject v. Connaughton, 752 F.3d 755, 762 (9th Cir. 2014), future actions warrantconsideration in a cumulative impacts analysis when “the agency ‘has a goal and is activelypreparing to make a decision on one or more alternative means of accomplishing that goaland the effects can meaningfully be evaluated.” Id. (citing 36 C.F.R. § 220.4(a)(1). Whileprojects must be more than “merely contemplated,” they need not be finalized before they arereasonably foreseeable. Id.

2. The Responsible Official arbitrarily limited the context of the projectThe responsible official limited the consideration of environmental effects to the “local

context of the Kosciusko Project” – the southern half of Kosciusko Island where the ForestService plans to cut old-growth and recovering forests. [DN/FONSI at 6]. Our scopingcomments and comments on the draft EA emphasized project impacts on Kosciusko Island asa whole, particularly with regard to non-federal logging and impacts on deer and wolves andold-growth habitat. [PR 762_0083 at 2; PR 762_0151 at 2, 8, 12]. We also noted that the


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Forest Service’s transition was relevant to how the Responsible Official should evaluate thecontext of this action. [PR 762_0151 at 4]. As a pilot project, the implications will be broaderthan normal, requiring analysis of impacts on a larger scale. The NEPA regulations explainthat “context” means:

The significance of an action must be analyzed in several contexts such as society as awhole (human, national), the affected region, the affected interests, and the locality.Significance varies with the setting of the proposed action. For instance, in the case ofa site-specific action, significance would usually depend upon the effects in the localerather than in the world as a whole. Both short- and long-term effects are relevant. [40C.F.R. § 1508.27(a)].

The context of a project is the scope of the agency’s action, including affected interests.National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 222, 731 (9th Cir. 2001).

3. Flaws with the cumulative impacts assessments for specific resourcesAs previously explained, the applicable analytical requirement is for the provision of

“‘some quantified or detailed information; … [g]eneral statements about possible effects andsome risk do not constitute a hard look absent a justification regarding why more definitiveinformation could not be provided.” Klamath-Siskiyou v. BLM, 387 F.3d 989, 993-94 (9th Cir.2004)(citations omitted). Thus, “[t]he analysis ‘must be more than perfunctory; it mustprovide a useful analysis of the cumulative impacts of past, present and future projects.”[Id.] But the EA failed to reflect an effort to produce the required “useful analysis,” because,as explained below, it failed to factor the potential cumulative long-term habitat loss into itseffects determinations. The draft DN is thus arbitrary because it reflects a flawed FEIS thatfailed to provide the required detailed information, and excused this failure based on anunreasonable justification.

a. The EA never considered timber demand in light of changing landownership

Our comments on the draft EA explained that the availability of non-federal timber in theproject area is significant, and in turn this project has a high likelihood of creating significantenvironmental impacts without an adequate economic justification. The EA has not exploredthis, and an EIS is necessary to do so adequately. The EA simply notes that “[c]urrent andreasonably foreseeable future timber harvest from State of Alaska, University of Alaska, andSealaska Corporation projects would also help meet the timber demand and support loggingand sawmill or export jobs.” [EA at 39]. The EA identifies a “need” to support timberindustry employment, and explains that the extent of meeting this need correlates directly tototal timber volumes. [Id.]. But it never took the necessary step of providing detailed andquantified information about how jobs and timber available from other landowners wouldmeet the perceived timber industry need. This exclusion was unreasonable.

b. The cumulative impacts determination for Queen Charlotte Goshawks fails toadequately measure POG across the landscape

The cumulative effects determination for Queen Charlotte goshawks states that“[a]dditional impacts to goshawks come from the past timber harvest on all ownerships.” [EAat 56]. Then the EA assumes that the retention of 50% of historical POG on forest lands and58% of POG on all lands would meet the threshold of retaining 40 to 50% mature old-growthforest across the landscape. [Id.] This is a significant error because the EA measuresimpacts based on historical POG, rather than the amount across the landscape. WAA 1525in its entirety is a 49,222 acre area, [PR 762_0176 at 7, Table 1], meaning that the actualamounts of foraging and nesting habitat across the landscape – 18,519 acres and 11,733acres, respectively, fall well below the threshold identified in the EA. Further analysis is


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needed to consider the actual available habitat and to re-evaluate the effects determination inlight of expert opinion in the record. [PR 762_0534 (Smith 2013)].

c. The cumulative impacts analysis for wolves and deer was inadequate

Our comments on the draft EA identified a high likelihood of the project contributing tosignificant cumulative impacts to wolves based on their current population status in GMU 2.[PR 762_1151 at 3]. 11

The EA ignores the cumulative impacts of Sealaska logging on deer by limiting projectimpacts to WAA 1525. [EA at 61 (In WAA 1526, there would be no direct or indirect effects ofany component of this project; thus, there would be no cumulative effects)]. It states that“[c]umulatively, there would be no changes to deer habitat capability in WAA 1526.” [EA at63].

Otherwise, cumulative impacts to deer, wolves and subsistence are already covered insections II.A.b and .c.

Regarding all cumulative impacts to deer, wolves and subsistence, the requestedresolution is to prepare an EIS for this project, in addition to other requests that may beincluded in those sections.

4. Conclusion and Suggested ResolutionThe 9th Circuit explains that “[a] proper consideration of the cumulative impacts of a

project requires ‘some quantified or detailed information; … [g]eneral statements aboutpossible effects and some risks do not constitute a hard look absent a justification regardingwhy more definitive information could not be provided.’” [Klamath Siskiyou, 387 F.3d at 993-94]. The EA did not provide that definitive information, even though the record providesenough material regarding the parameters of future federal and non-federal logging to informthe required analysis. The need to provide a comprehensive cumulative effects analysis ismagnified by the EA’s recognition that “[t]here is a likelihood that substantial changes toforest structure would occur in the project area as a result of cumulative large-scale Stateand private timber harvest within the next 10 years.”

The Reviewing Officer should direct the Responsible Official to withdraw the draft DN andEA and either prepare an EIS that responds to the obvious significant impacts of theactivities of all landowners in the project area, or modify the decision so as to eliminatecommercial harvest of second growth and defer such harvest pending the finalization of theTLMP Amendment process.

D. Objection Point 4: Pertaining to a Broad Failure to Produce an EISThe Tongass National Forest has only once, recently, prepared an EA for a timber sale

that entails the clearcutting of such a large amount of forest. That was for the Mitkof Islandproject, for which the decision was withdrawn after we filed suit, demanding that an EIS beprepared. As explained in the following Statement of Reasons, the Responsible Official for theKosciusko VMWIP project has failed to consider whether all of the project’s clearcutting –which we contend includes all of the acreage to be logged, including uneven aged

11 EA at 40: there is no cumulative effects analysis for the transportation system, even though theproject includes 6.4 miles of new and temporary road construction, 4.7 miles of reconditions and 18miles of maintenance.


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prescriptions12 – may have a significant impact, and thus has failed to construe thesignificance of the project’s actions and impacts and to recognize that an EIS is required.

In between 1998 and 2006, the TNF produced 10 timber project EAs for projects withtimber volumes that ranged from 2.6 to 8.7 MMBF, with an average volume of about 5.5MMBF.13 The converse is that since 1998 the TNF has produced 19 EISs for timber projectsthat removed considerably smaller amounts of forest (in some cases less than half) comparedto the Kosciusko VMWIP proposed action.14

The Responsible Official’s determination to prepare an EA fails to recognize how the scaleof the project (collective acreage and anticipated timber volume of the units, and the size ofthe project area) and the nature of the prescriptions are intertwined with significantenvironmental impacts in the context of explanations by various courts:

· In Wyoming Outdoor Coordinating Council v. Butz, the Forest Service had refused toprepare an EIS to analyze sales of 15 MMBF from a 5,000 acre project area thatincluded about half as much clearcutting (670 acres) as the Kosciusko VMWIPimplements with its clearcutting and patch clearcutting prescriptions. [WyomingOutdoor Coordinating Council v. Butz, 484 F.2d at 1247, 1251, n. 5 (10th Cir. 1973)].The court concluded that the agency needed to prepare EISs, recognizing that“[t]he clearcutting of the timber planned obviously will have a significant effect onthe environment for many years.” [Id. at 1250-1251].

· In 1995, a federal district court in Vermont found that a timber sale in a 5,561acre project area that affected 1,301 acres in some way and included 300 acres ofclearcuts and effects on wildlife habitat and specific species “is [significant] underany reasonable construction of the term.” [National Audubon Society v. Hoffman,917 F.Supp. 280, 287-288 (D. Vt. 1995)(adding that “[t]he magnitude of the instantproposals to extend road and conduct logging operations, as set forth in an EAtotaling over 65 pages, undermines defendants’ contention that the proposals arenot significant”)]. In comparison the Kosciusko VMWIP has an area of 56,063acres, proposes logging affecting 1,461 acres, including 386 acres of “even-aged”prescription.

· In 1997, another federal district court, while noting that the size of the projectalone does not dictate whether an EIS is needed, contrasted the project at issue,which required an EIS (31.1 MMBF) with two recent projects that did not requirean EIS (26 and 200 acres, respectively). Curry v. Forest Service, 988 F.Supp. 541,

12 The intent is to eventually log every acre in each unit of the project unless buffered, regardless ofwhether the prescription is called “clearcut,” “two-aged” or “uneven-aged.” [PR 0173 at 30-39(Silviculture Report)].13 These projects were the 1998 Nemo, Todahl and Twin Creek projects, the 2000 Doughnut and Polkprojects, the 2004 Boundary and Shady projects, and the 2006 Goose Creek, Overlook and Soda Nickprojects.14 These projects include the 1998 Crane and Rowan Mountain and Crystal Creek Projects (24 and 13MMBF); the 1999 Canal Hoya Project (13 MMBF); the 2000 Kuakan, Luck Lake and Skipping CowProjects (12, 12.9 and 19 MMBF); the 2001 – 2003 Woodpecker Project (16.3 MMBF); the 2003 FingerMountain, Licking Creek and Madan Projects (21.4, 17 and 27 MMBF); the 2004 Three Mile Project(19.5 MMBF); the 2005 Couverden and Emerald Bay Projects (23 and 16.4 MMBF); the 2006 ScottPeak and Tuxekan Projects (8.3 and 18.3 MMBF); the 2007 Scratchings and Traitors Cove Projects (21and 17.1 MMBF); the 2008 Baht Project (4.3 MMBF) and the 2011 Central Kupreanof Project (26.3MMBF). The maximum volume in any of the action alternatives for at least 9 of these projects was lessthan the amount proposed in the Mitkof Project.


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556 n. 15, 16 (W.D. Penn. 1997). The court identified a number of relevant factorsthat are also relevant here:

(1) a large number of acres;(2) the predominant use of clearcutting;(3) the presence of sensitive species;(4) the proximity of the project to old-growth forest (i.e. the project

apparently was logging second growth forests) and to importantwatersheds; and

(5) the length of the EA (49 pages, with 349 pages of appendices). [Id. at551-552 (noting that the CEQ explains that “[i]n most cases, a lengthyEA indicates that an EIS is needed”)].

All of these factors apply to the Kosciusko VMWIP, establishing that theResponsible Official failed to adequately consider the significance of the project:

(1) the acres of the Kosciusko VMWIP directly affected by logging;(2) the nearly 386 acres of clearcuts, combined with the removal half the

timber from 856 acres and one-third of the timber from 209 acres;(3) the presence of QCGs and wolves, and risks to other wildlife;(4) the presence of salmon streams ¾ and in addition karst; and(5) the 112 page length of the EA and 288 pages of resource reports.

And for the Kosciusko VMWIP project there is a 6th significant factor that fits thisgenre. On April 6, 2015, the Responsible Officer issued an “Amended … IntentLetter” [PR 0004] to the IDT. The letter explains that the EA takes the place of twoNEPA documents that would otherwise be prepared for the actions in this project.One NEPA document would have been for the timber sale, and the other for“restoration/improvement components” that are included in the combined project.

1. Conclusion and suggested resolutionThe only possible resolution consistent with nature and severity of these problems is to

prepare an EIS.

III. The Decision Would Violate the National Forest Management Act (NFMA)

A. Objection Point 5: The EA is outside the scope of the 2008 TLMPThe EA brushes-over a significant gap that exists between the current Forest Plan, and

the transition to young-growth management, as noted in our comments on the draft EA. [PR762_0151 at 3]. The 2008 TLMP does not function to provide the framework for a transition.It is not premised on a phase-out of old-growth logging, and it does not contemplate thecommercial clearcutting of recovering, second-growth forests. Consequently, the ForestService is amending the TLMP.

As the TLMP now stands, however, its provisions for second-growth forests relate toprojects primarily aimed at benefitting wildlife. [See, e.g. 2008 TLMP at 4-97 & -98 (directingthat the Forest Service improve wildlife habitat, understory forage production and increasethe development of old-growth characteristics in young growth (WILD2.I.A.1)]. Theseprovisions reflected the analysis in the TLMP FEIS, which identified pre-commercial thinningas the only common intermediate treatment used on the Tongass National Forest, and whichanticipated an increase in commercial thinning over the planning cycle. [TLMP FEIS at 3-342-343].


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1. TLMP needs to assess utilization and value of second-growth, prior to harvestingThe EA states that CMAI will not be reached within any of the young-growth stands until

2030, but will be clearcut before then anyway, pursuant to activity allowed by the Sealaskabill. But even if the legislation authorizes such removals under the TLMP, Congress was wellaware that TLMP is undergoing the Amendment process, and objectors submit that suchprocess must be complete prior to commercially logging these immature trees.

The Forest Plan states that “[e]ven-aged timber stands shall not be scheduled for finalharvest before stand growth has reached or surpassed 95 percent of the Culmination ofMean Annual Increment.” [TLMP at 4-71]. Thus, as the silviculture report acknowledges, theForest Plan, which implements NFMA, limits the take of timber to intermediate treatments oruneven-aged management pending the achievement of CMAI. [PR 762_0173 at 32].

The Kosciusko VMWIP plans to take timber from recovering second-growth forests prior toCMAI, based on the allowance in the 2015 Defense Authorization Act. The provision is that“the Secretary of Agriculture may allow the harvest trees prior to the culmination of meanannual increment of growth in areas that are available for commercial timber harvest underthe Tongass National Forest Land and Resource Management Plan to facilitate the transitionfrom commercial timber harvest of old growth stands.” [NDAA §3002(e)(4)(A); PR 762_0173 at8]. A hurdle is that such timber cannot be advertised for sale if its value appraises negative.[NDAA §3002(e)(4)(B)(ii)]. Due to that hurdle, stands in the Kosciusko VMWIP alternativesthat have not attained CMAI will be clearcut. [EA at 2]. That is, the Forest Service is takingadvantage of a loophole in the law which leads the agency to clearcut in places that itotherwise would not log for a few decades (if ever, perhaps) out of consideration for attainingeventual maximum timber value and volume or out of consideration for other resources. Asone example, a 90-year rotation vs. a 60 year rotation yields 76% more timber volume over a180-year period (2 or 3 rotations, respectively, yielding 183 MBF/acre vs. 104 MBF/acre).[EA at 34].

The need for a Forest Plan Amendment to address this second-growth clearcutting issueis evident in the inconsistency of this project with existing Forest Plan measures. Forexample, the TLMP requires “utilization and optimum feasible use of wood material.Promote the use of wood for its highest value produce commensurate with present andanticipated supply and demand.” [TLMP at 4-74]. How do the commercial clearcuts here ofimmature trees reflect highest value and future demand? The EA does not, and cannot,answer that question absent programmatic analysis. The NDAA’s CMAI provision only affordsthe Secretary latitude to log second-growth earlier than otherwise allowed, but it does notabsolve the USDA/Forest Service from doing so through a Forest-wide plan and a planningprocess for establishing that plan, both needing to be consistent with NFMA.

2. Justification for clearcutting young growthThe Forest Plan amendment needs to address the justifications for clearcutting second

growth prior to authorizing a project of this scale.

The justification for clearcutting states that “it is the optimum treatment to meet themajority of project objectives” cites “the risk of weather damage to the residual stand andalso due to concerns for future wood quality and timber value.” [PR 762_0173 at 33]. One ofthe objectives is to provide a return to the government. [PR 762_0173 at 34]. The clearcutswill result in improvements to wildlife habitat over the existing condition – openings thatapproach 100 acres would improve the diversity of the current landscape.” [PR 762_0173 at34]. Two-aged management provides for increased wildlife benefit over clearcutting whilmaintaining as much of the operational and economic feasibility of clearcutting as possible.[PR 762_0173 at 35; patch clearcutting offers similar control of disease and insect issues].


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Forest Plan problem: EA at 27: clearcutting – “young-growth stands in the project areaare typically healthy and growing well with no foreseeable insect or disease issues.” EA at27. Windthrow risk: EA at 33. TLMP: Apply even-aged silvicultural methods in such a waythat isolated stands of timber will not be created.” [TLMP at 4-71].

3. There are no Forest Plan requirements for forest structure retention in second-growthforests, even in heavily clearcut landscapes

Objectors submit that an additional reason why programmatic analysis is necessary priorto the large-scale clearcutting of second growth is that there has been no adequate analysisof wildlife habitat needs in second growth matrix lands.

Legacy: EA at 44: VCUs 5440, 5450, and 5460 all exceed Forest Plan thresholds forremaining POG, requiring implementation of the Legacy Forest S & G. [EA at 44]. Butbecause all harvest in those VCUs is young-growth, the standard does not apply. [EA at 44].Thus, even though the TLMP recognizes that project area VCUs “have had concentrated pasttimber harvest activity and are at risk for not providing the full range of matrix functions,”[TLMP at 4-90], there is no measure in place to address matrix function in recovering,second-growth forests. As explained in the Silviculture Report, “[t]he Forest Plan is notspecific regarding the requirements for legacy in young growth. The plan does howeverdefine the requirements for legacy retention as being old-growth structures. … From this, itis clear the Forest Plan intended legacy as mitigation for old-growth harvest only since it isimpossible to meet these retention requirements in young-growth stands. Based on this, theKosciusko Project will not attempt to apply Legacy in young-growth stands. [PR 762_0173 at29].

4. Conclusion and suggested resolutionAn EIS should be prepared for this project, after the Forest Plan is amended.

B. Objection Point 6: Provision of a deer carrying capacity of only 5 deer/mi2 would violateTLMP and NFMA

The EA claims that a carrying capacity of only 5 deer/mi2 is needed to provide for wolfviability, instead of the Forest Plan’s standard and guideline establishing this threshold as 18deer/mi2. (EA at 69). The Forest Service has advocated the lower of these values at otheropportunities in recent years. The agency’s claim is that the lower value is valid because itwas stated in the May 5, 1993 review draft strategy by the interagency Viable PopulationsCommittee, “A proposed strategy for maintaining well-distributed, viable populations ofwildlife associated with old-growth forests in Southeast Alaska”. (Suring et al. 1993).15 Everypage of the document is headed “Final Review Draft”.

The final review draft was subsequently peer reviewed by a committee of scientistsassembled by the Forest Service for that purpose, and its review was publicly issued. (Kiester& Eckhardt, eds., 1994 (TLMP doc. 603_0009)). The Viable Populations Committee wrote aresponse to the peer review, but was disbanded before it could issue a final strategydocument. In following years, during preparation of the 1997 Tongass Forest Plan, an expertwolf panel was conducted in 1995, an interagency conservation assessment for theAlexander Archipelago wolf was completed in 1996 (the peer reviewed Person et al. 1996 (PR0503)), and second expert wolf panel was conducted in 1997.

The relevant statement in the Viable Populations Committee’s review draft is:

15 Submitted with this Objection letter. Also found as TLMP record 603_0008.


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“Gray Wolf.--The following management standards should be implemented to I'maintain distribution ofthis species throughout its current range in southeast Alaska (Kirchhoff 1993): … 2.) Habitat capabilitynecessary to provide for equilibrium populations of predators and prey should be maintained whereverpossible. As a general rule, sufficient habitat capability for Sitka black-tailed deer should be maintained tosupport at least 5 deer per mi2 where deer are the primary prey item for gray wolves, on most islands andthe southern half of Cleveland Peninsula).”

The cited document Kirchhoff (1993) is an appendix on pages 156-170 of the review draft,and each of its pages is also headed “Final Review Draft.” The derivation of the then proposed5 deer/mi2 criterion is presented on pages 163-164. Its basis is a need for 156 deer per wolf(determined for an estimated finite rate of population increase for deer of 1.2) and a densityof 1 wolf per 32 square miles. This amounts, by simple arithmetic, to a needed deer densityof 4.875 deer/mi2, or 5 deer/mi2 rounded. (Id.). For comparison to other facts below, alsonote that this quantity would be the minimum density of actual deer, not the carryingcapacity.

The wolf conservation assessment (Person et al. 1996) took a different approach. Thenumber of deer per wolf needed for the two populations to be at equilibrium was determinedwith Monte Carlo simulation modeling that calculated equilibrium ratios for that predator-prey system. The results were based on 10,000 random simulations. Underlying data used inthe model included a finite rate of increase for the deer population of 1.3, a meanconsumption of 26 deer per year per wolf for deer, and a human deer harvest of 21% of theannual increment.. (Id. at pdf page 5 (unnumbered), 18 & 19). The result was the need for aminimum actual deer population of 13 deer/mi2 (Id. at 29), which is equivalent to a neededcarrying capacity of 18 deer/mi2. (Person et al. 1997; Forest Supervisor Puchlerz’ directive ofAug. 6, 2000 with attached FY 2000 Monitoring Report (see at 2-155) – all submitted withthis objection letter – and 2008 TLMP S&G XIV.A.2). Part of the necessity of establishing thecriterion in this way is that at times when the demand of deer hunters cannot besatisfactorily satisfied by the available population of deer, wolves are persecuted. Therefore,the sustainability of wolf populations depends on providing an adequate supply of deer forboth hunters and wolves.

It is apparent from the above facts that the Forest Service’s contention that the Suring etal. 1993 proposal of a 5 deer/mi2 criterion should be used is specious, that quantity hasappeared only in a draft document, and that it has been replaced through more refined, peerreviewed science. The currently used quantity (18 deer/mi2 carrying capacity) was adoptedthrough a deliberative process within the Forest Service, and has been accepted by allagencies.

1. Conclusion and suggested resolutionA decision relying on a 5 deer/mi2 criterion for deer carrying capacity with an objective of

providing for the sustainability of the wolf population would be contrary to the best availablescience that underpins the Forest Plan’s conservation strategy and its wolf standard andguideline. This would be a violation of both the Forest Plan and the National ForestManagement Act, which the standard and guideline implements. Our suggested solution isthat the Final Decision Notice include an explicit statement that the posited 5 deer/mi2

criterion in the EA is incorrect, and that the 18 deer/mi2 carrying capacity in the standardand guideline was relied upon.

C. Objection Point 7: The TLMP Conservation Strategy no longer protects wolvesThat the TLMP Conservation Strategy no longer protects wolves was a topic in our

comments on the Draft EA. [PR 0151 at 9-12]. Our comment was included in the Response toComments document [PR 0163 at 21-25], however, given was “[t]his is beyond the scope ofthis project.” [Id. at 25]. Nevertheless, this insufficiency is a glaring problem, and it has a


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direct bearing on the planning and execution of the Kosciusko VMWIP and its ultimateimpact on wolves. Therefore we raise the topic again here, as a point of objection.

The Forest Plan’s conservation strategy has become invalid because the strategy was notrevisited and revised after changes were made to the deer model in 2000 and 2008.16 Thedeer model played an important role with respect to wolves in the development of theconservation strategy, including through the Viapops Committee’s reports, the 1994 PNWpeer review, and the 1990s deer and wolf expert panels, as well as being prominent in theForest Plan’s wolf standard and guideline. Further, the conservation strategy may never havebeen adequate (or valid) for the sustainability or viability of wolf populations, because itstreatment of the need for large and very large old-growth reserves (OGRs) was arbitrary.Certainly, some decision had to be made in those regards, but it was made without furtherconsultation with the expert scientists who had been brought into the process, and thisaspect of the strategy was never seriously revisited to ensure that the viability and widedistribution of wolves had been adequately protected. “[S]cientific analysis to support explicitimplementation of all recommendations [in the 1997 Forest Plan] was generally not asthorough as that provided in Suring et al. (1993) or Kiester and Eckhardt (1994).” (Iverson &DeGayner 1997 at 13). These observations need to be viewed in the context of the steady,dramatic decline of GMU-2 wolves from a population of roughly 300 in the mid-1990s to anestimate of less than 60 today, and perhaps fewer than 20.17

1. The conservation strategy was not revisited when the deer model was changedThe 1997 Forest Plan and the conservation strategy, were developed on the

misunderstanding that a carrying capacity of 13 deer/mi2 was necessary, and this was builtinto three important instruments: the deer model, the 1997 Forest Plan’s wolf standard andguideline, and the analysis table of WAAs forestwide that was used to judge the adequacy ofthe Forest Plan for protecting wolves. There were two big problems with this arrangement.First, 13 deer/mi2 is the necessary actual density of deer that is required, according to thescience. The deer model measures carrying capacity and a carrying capacity of 18 deer/mi2 isnecessary to provide that minimum deer density. (Person et al. 1997). This was a 38% errorthat was pointed out in 1997 but not corrected in the standard and guideline until 2000.Second, the deer model was incorrectly implemented, with both a “deer multiplier”component that exaggerated carrying capacity (court decisions in Greenpeace v. Cole) and avegetative dataset (VolStrata) that was uncorrelated to habitat quality [TLMP doc 603_0136(Caouette et al. 2000)]. These modeling problems were not fully corrected until the 2008Forest Plan. The deer multiplier that was used for the 1997 Forest Plan and conservationstrategy development applied the deer multiplier in a way that caused it to have an effectivevalue of 165 instead of the 100 effective value that should have been used. As a consequenceof the above various errors, the tables that were used to judge the impact of the Forest Planacross the forestwide WAAs and the adequacy of the conservation strategy for wolves werevery optimistic. This circa 1997 modeling played a large role in determining the structure ofthe old-growth reserve system, the acceptable scale of the Tongass timber program, and thelocation, sizes and timber quality of the development LUDs. Although some review was givenwith corrected modeling in 2008, the expert deer and wolf panels and the PNW reviewerswere never reconvened to revaluate the adequacy of the conservation strategy for wolves.

16 Changes were made via the FY 2000 Monitoring & Evaluation Report and the 2008 Forest Plan.17 ADF&G’s official median estimate for fall 2014 was 89, but 29 were legally taken (resulting in the60 above); but this does not take into account illegal take. The low estimate was 50, less the 29 is 21.There is no evidence from this spring of more than negligible reproduction.


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Iverson & DeGayner (1997) disclosed, based on the then-current modeling and theerroneous 13 deer/mi2 carrying capacity threshold in the TLMP standard and guideline, thatin the POW/Kosciusko biogeographic province, only 5 of the 25 WAAs were substandard. Ifinstead the correct 18 deer/mi2 threshold had been used (but still without corrections for theother model problems), 12 of the 25 WAAs were already substandard at that time. The 2008Forest Plan FEIS shows 17 WAAs being substandard after 100 years. The point is, assuccessive corrections have been made, the optimism18 of the 1997 deer carrying capacityanalysis has eroded, yet this fundamental analytic underpinning of the ConservationStrategy (and hence the Forest Plan itself) has never been revisited to ensure that it isadequate. This is not just a Forest-level problem; the problem is directly implicated inproject-level planning, NEPA analysis, and most importantly the outcomes (impacts) ofprojects both individually and collectively.

2. The provision of large & very large reserves was arbitrary, and this was neverrevisited

Chris Iverson, on the 1997 Forest Plan IDT, was the point person for forming theconservation strategy from the collected scientific information. In 2006 he wrote aretrospective memo19 to Forest Service planner Mary Friberg, explaining how the strategy hadevolved and been finalized by the planning team. His memo shows that regarding the needsof wolves, the designation of large and very large habitat reserves was largely arbitrary. Evenassuming that a decision had to be made without resolving ambiguities, the question thatarises from this memo is: why was the conservation strategy never revisited in a way thatcould resolve the arbitrary aspects?20 In his memo Iverson said, concerning the 1997conservation strategy:

The PNW Peer reviewers recommended "larger reserves" and "wider corridors" ....without explicitly stating "how large" and for what purpose/species and "how wide"corridors needed to be for what species and what barriers were presented that were notadequately covered in the [draft] TLMP. … So while doing this analysis, I approachedthe "large reserve" - an unspecificed size beyond the VPOP Large 40,000 acre reserve -analysis by taking advantage of all non-development LUDS that maintained theintegrity of the old growth forest ecosystem. I had GIS do a dissolve on all Non-development LUDS to identify contiguous blocks of connected old growth forest in eachbiogeographic province. This is where the Very Large Reserve data and analysis comesfrom.

There were no additional land allocations to consciously create the Very Large Reserves¾they just resulted from the synthetic construction of the integrated TLMP. … theVery Large Reserves was simply an outcome and not conscious design to meet somespecific objective.”

(Id. at 4, emph. added).

18 An example of the optimism: “This analysis indicates that after 100 years of implementation of theRevised TLMP, at least 80% of the WAA’S on POW/Kosciusko and Kuiu/Kupreanof/ Mitkof will haveestimated deer habitat capability densities that meet or exceed 13 deer/mile2. Thus, for only 20% ofthe WAA’S in this region, there is some elevated risk of either not sustaining current wolf populations(estimated 250-300 wolves), or current annual levels of human deer harvest, or both and there is aslightly elevated long-term risk that any existing current equilibrium may be disrupted.” (Iverson &DeGayner 1997 at 15).19 2008 Forest Plan document 6-3_1127, dated March 17, 2006.20 A scientific Conservation Strategy Review Workshop was held in 2006 by the Forest Service, inpreparation for the 2008 Forest Plan amendment; however, that process was different that the onesemployed in the 1990s and it was ineffective in reaching and resolving the shortcomings of thestrategy.


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The brown bear and wolf were part of the VPOP analysis that helped design the Large -40,000 acre and medium 10,000 acre reserves) [sic] as stated above - no species habitatneeds were explicitly used to design the ‘very large reserves’.

(Id. at 7, emph. added). These revelation corroborate repeated assertions by AlexanderArchipelago wolf expert Dr. David Person that the reserve system as implemented, andconsequently the conservation strategy, are inadequate to support sustainable or viable wolfpopulations, particularly in GMU-2. See for example his two declarations that were used inappeals and litigation of the Big Thorne project. [PR 0421 & 0422 (Person 2013, 2014)]. Inaddition, Person et al. (1997) discussed the efficacy of the reserves in the 1997 Forest Plan:

The FEIS states that the reserves planned for Prince of Wales, Kosciusko, Mitkof,Kupreanof, and Kuiu islands meet the criteria of the wolf conservation assessment. Ifthe deer habitat capability is corrected (Attachment 2) then only one reserve(Tebenkof/South Kuiu) will satisfy our criteria. Further, we stated that reserves shouldbe roadless or have human access limited. There appears to be no provision for this inthe FEIS. It was our intent that the reserves represent the real safety margin or bufferfor wolves in areas as extensively developed as GMUs 2 and 3.

3. ConclusionThe failures of the conservation strategy for wolves are, in consideration of the facts in

this section, the converse of the high likelihood rating for wolf viability that was ascribed bythe 1996 and 1997 TLMP expert wolf panels, and of these praises for the strategy by Iverson& DeGayner (1997) in their summary of their section on wolves:

The high likelihood21 conclusion is based upon the following findings using the WolfAssessment22 as a basis of analysis.

1. Habitat reserves in excess of the total indicated in the Wolf Assessment will bemaintained on POW/Kosciusko Islands and Kuiu/Kupreanof/Mitkof Islands to providesecure refugia for persistent core wolf packs and increased likelihood of long-term wolfviability. Furthermore, the reserves include high quality old-growth habitat necessary tosupport the recommended density23 of 18 deer/mile2.

2. In our conservative analysis, the deer habitat capability of 13 deer/mile2, indicatedin the Wolf Assessment to sustain the current wolf population that is in apparentequilibrium between current human deer harvest levels and deer habitat capability, ismaintained in 80% of the WAAs on POW/Kosciusko and Kuiu/Kupreanof/Mitkof in 100years

3. Wolf mortality and access management will be addressed through a reasoned, site-specific analysis process to be conducted in cooperation with the FWS and ADF&G.This is directed as a standard and guideline in the Forest Plan and solutions mayinclude road access management.

(Id. at 21). All three of the assumptions have unraveled since then, as subsequent eventsincluding the continual and alarming decline of the GMU-2 wolf population have shown. TheKosciusko EA discusses only the effect of the project on OGRs. A significant omission of theEA is not taking an in-depth look at the adequacy of the island’s and the province’s24 largeand very large reserves, particularly in light of current events [e.g., PR 0481 (ADF&G June

21 Explained in their introduction as “a high likelihood of maintaining habitats to sustain viable wolfpopulations”. (Id. at 1).22 Person et al. 1996.23 This is for within reserves, not to be confused with the wolf standard and guideline that has asuperficially similar number.24 Importance of migration is a factor.


2015 report] and the large non-federal landholdings on the island that have not yet been adequately considered at a higher planning level. It also must be borne in mind that the very large non-federal land holdings will affect the function of the matrix for wolves (and other species) in ways that were never contemplated in the TLMP. This places a high burden on project level planning, and certainly requires an EIS instead of an EA.

1. Conclusion and suggested resolution

The problem is very substantial. TLMP is not compliant with NFMA because its conservation strategy is inadequate for protecting the viability and wide distribution of wolves. Even if the Kosciusko VMWIP project had been adequately planned (it has not been), it too would incompliant with NFMA because the conservation strategy and standards and guidelines it has relied upon are incompliant.

Our suggested resolutions are: (1) for the Forest Service to acknowledge the problem and its high importance; (2) to cease relying on the "likelihood" ratings from the 1990s deer and wolf panels; (3) to cease considering the reserve system to be adequate contributor to the protection of wolf viability and the sustainability of populations; (4) begin without delay a process to replicate the expert panel process, providing it with current information; (5) build a new conservation strategy that is capable of restoring and sustaining wolf viability and sustaining populations; (6) at the project level (including the Kosciusko project) until a reconstructed conservation strategy is in place, take extraordinary steps to ensure that the scale and intensity of projects is small enough to compensate for the faults in the current conservation strategy; and (7) prepare an EIS for the Kosciusko VMWIP in order to ensure that.

IV. Additional conclusion and suggested resolution

For the reasons in all of the above sections: (1) an EIS needs to be prepared for this project, and (2) we request that the project purpose and need be modified and the project be re-scoped, to delete all even aged, two-aged and uneven-aged units and associated roadwork, and with other activities to proceed. There will be lot of timber industry activity on the island without those deleted features.

V. Signatures

(verifiable signatures upon request)

Gabriel Scott, Alaska Legal Director Cascadia Wildlands Box 853 Cordova AK 99574 gscottAcascwild.org

Noah Greenwald Center for Biological Diversity PO Box 11374 Portland, OR 97211 ngreenwaldAbiologicaldiversity.org

Larry Edwards Greenpeace Box 6484 Sitka, Ak 99835 [email protected] g

John Toppenberg Alaska Wildlife Alliance 143 Manzanita Drive Sequim, WA 98382 j ohnAakwildl i fe.org

David Beebe Greater SE Alaska Conservation Community Box 6064 Sitka AK 99835 commun itv(4sacc.net

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